2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-31-2008

Richard Mullarkey v. Leonard Tamboer

Precedential or Non-Precedential: Precedential

Docket No. 05-4081

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-4081

IN RE: RICHARD JOHN MULLARKEY,

 Debtor

RICHARD MULLARKEY,

 Appellant

 v.

LESLIE TAMBOER; LEONARD TAMBOER; JOHN

MCKENNA;

DAVID GHERLONE; STEVEN KARTZMAN

Case No: 05-4651

RICHARD MULLARKEY,

 Appellant

 v.

LEONARD TAMBOER; LESLIE TAMBOER;

JOHN MCKENNA; DAVID GHERLONE
 The Honorable Gustave Diamond, Senior District Judge for *

the United States District Court in the Western District of

Pennsylvania, sitting by designation.

2

 

On appeal from the United States District Court

for the District of New Jersey

District Court Nos. 05-CV-2594, 05-CV-2010

District Judge: The Honorable Faith S. Hochberg

 

Argued February 13, 2008

Before: SLOVITER and SMITH, Circuit Judges, 

and DIAMOND, District Judge*

(Filed: July 31, 2008)

Christian G. Vergonis (ARGUED)

Jones Day

51 Louisiana Avenue, N.W.

Washington, DC 20001-0000

Counsel for Appellant

Kathleen B. Riordan (ARGUED)

Hack, Piro, O'Day, Merklinger, Wallace & McKenna

30 Columbia Turnpike

P.O. Box 941

Florham Park, NJ 07932-0000
3

Gina M. Longarzo, Esq.

244 Green Village Road

Madison, NJ 07940

Counsel for Appellee

Steven Kartzman

1 Professional Quadrangle

Sparta, NJ 07871-2310 

Pro Se

 

OPINION

 

SMITH, Circuit Judge.

Richard Mullarkey and the Tamboers each owned an

undivided one-half interest in a parcel of property known as

“The Princeton Estates,” or 86 Branchville Road, Hampton

Township, New Jersey. The Tamboers agreed to pay

Mullarkey’s original bank mortgage and, in turn, held a

mortgage on his share of the property. The mortgage was dated

June 2, 1990, and was recorded on February 28, 1991.

Mullarkey ultimately defaulted on his mortgage obligations. On

July 2, 1997, the Tamboers initiated a foreclosure action in New

Jersey state court. Mullarkey did not appear and the state court
 Mullarkey contends that he was unable to obtain municipal 1

approval for subdivision of the property because the Tamboers

would not give him the engineering maps, approvals and other

necessary documentation.

4

entered a default judgment of foreclosure on March 25, 1999,

and scheduled a Sheriff’s Sale. On June 4, 1999, Mullarkey

filed a Chapter 13 bankruptcy petition, which triggered the

automatic stay provision of the Bankruptcy Code and stayed the

Sheriff’s Sale. 

On April 17, 2000, the Tamboers filed a motion seeking

relief from the automatic stay based on Mullarkey’s continued

failure to make payments pursuant to the terms of the mortgage.

The Bankruptcy Court granted Mullarkey additional time to

obtain approval for subdivision of the property to enable him to

sell his interest. The approvals were not obtained and 1

approximately a year later, on March 13, 2001, the Bankruptcy

Court entered an order granting the Tamboers relief from the

automatic stay. Mullarkey appealed this decision to the District

Court and requested that the District Court stay implementation

of the Stay Relief Order pending the outcome of the appeal. The

Court denied the stay request. Mullarkey also sought to stay the

Sheriff’s Sale in state court, which was also denied. In addition,

he made an application to the Bankruptcy Court for an order

vacating the order vacating stay, which was also denied. 

The Tamboers purchased the property at the Sheriff’s
 On December 3, 2003, the District Court issued an order 2

instructing Mullarkey to “submit a clear and concise statement

of the basis for federal subject matter jurisdiction.” On

December 19, 2003, Mullarkey responded by setting forth ten

“facts” that form the basis for his pro se Complaint. As such,

when we refer to Mullarkey’s Complaint throughout this

opinion, it is to these “facts” that we are referring.

 Mullarkey also filed the same Complaint in the Bankruptcy 3

Court on January 30, 2004 against the Tamboers. On April 8,

2004, Mullarkey filed an Amended Complaint adding John

McKenna and David Gherlone to the case. Mullarkey asserted

5

Sale on July 6, 2001. Following the Sheriff’s Sale, Mullarkey’s

bankruptcy case remained open while he completed the sale of

an unrelated property and made the payments called for by his

reorganization plan. His reorganization plan was confirmed on

April 11, 2001. 

On December 2, 2003, Mullarkey filed a pro se

Complaint against the Tamboers in the United States District

Court for the District of New Jersey. The essence of 2

Mullarkey’s allegations is that the Tamboers committed fraud on

the Bankruptcy Court and that their actions constituted “several

acts of racketeering” in violation of the federal Racketeer

Influenced and Corrupt Organizations (RICO) statute. The

District Court ultimately determined that the “matter over which

the Plaintiff complains is related to the Bankruptcy Proceeding”

and referred the matter to bankruptcy.3
that both of these individuals withheld evidence from the

Bankruptcy Court as to the criminal intent of the Tamboers

regarding the sale of the property. Adversary proceedings were

dismissed as to David Gherlone on October 18, 2004. 

6

After the Complaint was referred to the Bankruptcy

Court, Mullarkey filed four motions. The Court denied each

motion in an order dated January 12, 2005. The motions were

for: 1) a discretionary change of venue to the district court; 2)

joinder of Steven Kartzman (Mullarkey’s former attorney) as a

necessary party; 3) “a reference to a prosecuting authority”; and

4) a motion to reconsider the order dismissing Defendant

Gherlone. On January 21, 2005, Mullarkey appealed the denial

of these four motions. However, he incorrectly filed his appeal

with the Bankruptcy Court. The appeal was eventually

transferred to the District Court and assigned civil docket

number 05-2010. It appears, however, that only two of the four

orders were ever recorded on the District Court docket. At all

events, the District Court affirmed the Bankruptcy Court’s

denial of Mullarkey’s motions on August 2, 2005. Both parties

seem to agree, however, that the District Court never actually

reviewed the Bankruptcy Court’s order denying the motions

because the order refers to the “April 11, 2005 Order of the

Bankruptcy Court dismissing Mullarkey’s Fraud Complaint.”

On August 15, 2005, Mullarkey filed a motion for

reconsideration of the District Court’s order. He did not argue

that the District Court did not consider the orders from which he

appealed; rather, he claimed that the District Court “overlooked
 Although the Defendants filed the motion pursuant to 4

Federal Rule of Civil Procedure 12(b)(6), the Bankruptcy Court

treated the motion as one for summary judgment. The Court

noted that if the moving party introduces matters outside of the

pleadings, the motion is treated as one for summary judgment

under Federal Rule of Civil Procedure 56, made applicable to

bankruptcy proceedings under Federal Rules of Bankruptcy

Procedure 7056. The Bankruptcy Court’s opinion suggests that

it looked at “numerous submissions made by [Mullarkey] in

prior proceedings before this Court and other courts.” 

7

the fact that the [Bankruptcy Judge’s] order dismissing the case

was not on the merits.” He argued that the District Court erred

by failing to consider the merits of his claim. On August 23,

2005, the District Court denied the motion for reconsideration

as untimely filed and without merit. Mullarkey timely appealed

to this Court from the denial of his motion for reconsideration.

In the meantime, the Tamboers moved to dismiss

Mullarkey’s Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6), which by virtue of Rule 7012(b) of the

Federal Rules of Bankruptcy Procedure, is made applicable to

bankruptcy proceedings. The Bankruptcy Court granted their

motion to dismiss in an order and opinion dated April 11, 2005.4

The Bankruptcy Court concluded 1) that the Complaint’s

allegations of fraud were raised in prior proceedings and

therefore were barred by the doctrines of res judicata and

collateral estoppel (or alternatively, the entire controversy
8

doctrine), and 2) that Mullarkey did not have standing to bring

criminal charges and so, to the extent his Complaint can be read

to include criminal charges, he lacked standing to bring them. 

Mullarkey appealed the Bankruptcy Court’s order

granting the motion to dismiss. The District Court affirmed the

Bankruptcy Court’s order in a one-page order dated August 26,

2005, and denied Mullarkey’s motion for reconsideration on

October 4, 2005. Mullarkey timely appealed to this Court from

the denial of his motion for reconsideration.

I.

In this appeal, Mullarkey argues that bankruptcy

jurisdiction did not exist over his Complaint, and that even if

there was bankruptcy jurisdiction, the District Court erred in

treating the matter as a core proceeding—allowing the

Bankruptcy Court to enter a final judgment pursuant to 28

U.S.C. § 157 and applying a deferential standard of review in

lieu of the required de novo review. Mullarkey further argues

that his Complaint should not have been dismissed on preclusion

grounds, and that he may seek a civil remedy for the

Defendants’ violation of the federal RICO statute, 18 U.S.C.

§ 1964. 

The District Court had jurisdiction to review the

Bankruptcy Court’s order under 28 U.S.C. § 158. We have

jurisdiction under 28 U.S.C. §§ 158(d) and 1291. Our review of
 Section 1334(b) of Title 28 states that “the district courts 5

shall have original but not exclusive jurisdiction of all civil

proceedings arising under title 11, or arising in or related to

cases under title 11.” Section 157(a) of the same Title states that

“Each district court may provide that any or all cases under title

11 and any or all proceedings arising under title 11 or arising in

or related to a case under title 11 shall be referred to the

9

the District Court’s ruling in its capacity as an appellate court is

plenary, and we review the bankruptcy judge’s legal

determinations de novo, In re O'Lexa, 476 F.3d 177, 178 (3d

Cir. 2007). We review “its factual findings for clear error and

its exercise of discretion for abuse thereof.” In re United

Healthcare Sys., Inc., 396 F.3d 247, 249 (3d Cir. 2005). The

first question we must resolve is whether the Bankruptcy Court

had subject matter jurisdiction and the final adjudicative

authority to resolve the state-law claims alleged in Mullarkey’s

Complaint.

II.

As with all courts, courts in bankruptcy must satisfy

themselves of subject matter jurisdiction. A bankruptcy court

has subject matter jurisdiction over “all cases under title 11 and

all core proceedings arising under title 11, or arising in a case

under title 11, referred under subsection (a) of this section, and

may enter appropriate orders and judgments, subject to review

under section 158 of this title.” 28 U.S.C. § 157(b)(1).5
bankruptcy judges for the district.”

 A bankruptcy court may, however, issue final orders and 6

judgments in non-core proceedings if both parties consent. 28

10

Therefore, a bankruptcy court must make an initial

determination that the claims before it fall within the purview

of section 157 of Title 28. Once this determination has been

made, § 157 invests two levels of authority in a bankruptcy

judge depending upon which of the two categories a case or

proceeding falls into. In re Seven Fields Dev. Corp., 505 F.3d

237, 254 (3d Cir. 2007) (citing 28 U.S.C. § 157). The two

categories are (1) “all cases under title 11 and all core

proceedings arising under title 11, or arising in a case under title

11,” 28 U.S.C. § 157(b)(1) (collectively known as “core

proceedings”), and (2) “a proceeding that is not a core

proceeding but that is otherwise related to a case under title 11,”

28 U.S.C. § 157(c)(1) (“non-core proceedings”). Id. (citations

omitted). While it is clear that a bankruptcy court has

jurisdiction over all proceedings “related to” a bankruptcy case,

the core/non-core distinction is relevant to the scope of the

bankruptcy court’s powers upon referral: in core proceedings,

the bankruptcy judge may issue final orders and judgments. See

28 U.S.C. § 157(b)(1). In non-core proceedings, the bankruptcy

court’s powers are more circumscribed: it must submit

“proposed findings of fact and conclusions of law” to the district

court, which enters an order only after conducting de novo

review. See 28 U.S.C. § 157(c)(1). 6
U.S.C. § 157(c)(2). 

11

Thus, the core/non-core distinction is a critical one with

respect to a bankruptcy court’s adjudicative authority. To this

end, § 157(b)(3) states that: 

The bankruptcy judge shall determine, on the

judge’s own motion or on timely motion of a

party, whether a proceeding is a core proceeding

under this subsection or is a proceeding that is

otherwise related to a case under title 11. A

determination that a proceeding is not a core

proceeding shall not be made solely on the basis

that its resolution may be affected by State law.

28 U.S.C. § 157(b)(3). As the Bankruptcy Court in the instant

case failed to make any such determination before granting a

dispositive motion and entering final judgment, we must decide

whether this statutory provision requires a bankruptcy court to

explicitly determine, as a jurisdictional prerequisite, if a

proceeding is core. The Fourth Circuit in In re Johnson, 960

F.2d 396, 400 (4th Cir. 1992), pointed out that: 

[s]ome courts hold that failure of the bankruptcy

court to make a § 157(b)(3) finding deprives the

bankruptcy court of jurisdiction; and the failure of

the parties to request the finding does not waive

their right to later object that the finding was a

necessary predicate to jurisdiction. In re Wefco,
12

97 B.R. 749, 750–51 (E.D.N.Y. 1989) (failure to

determine whether matter is core or non-core is

not harmless error); In re Marill Alarm Systems

Inc., 81 B.R. 119, 122 (S.D.Fla. 1987), aff’d sub

nom. Marill Alarm Sys. v. Equity Funding, 861

F.2d 725 (11th Cir. 1988) (not precedential) (if

bankruptcy judge enters final judgment without

making determination under § 157(b)(3) it must

be invalidated; failure of parties to move for

determination does not waive error); In re Nell, 71

B.R. 305, 310 (D.Utah 1987) (same). Other courts

hold that a party’s failure to request a 157(b)(3)

finding waives any objection to the lack of such

finding. In re Rath Packing Co., 75 B.R. 137, 138

(N.D.Iowa 1987), aff’d sub nom. Rath Packing

Co. v. United Food, 860 F.2d 1086 (8th

Cir.1988), cited in 1 Collier on Bankruptcy (MB)

¶ 3.01 at 3-52 (15th ed. 1989); Rainey v.

International Harvester Credit Corp., 59 B.R.

987, 989–90 (N.D.Ill.1986). 

The Fourth Circuit was persuaded by the latter view, concluding

that the lack of a jurisdictional finding under § 157(b)(3) does

not, in itself, deprive a bankruptcy court of jurisdiction. In re

Johnson, 960 F.2d at 400 n.2. 

We agree with the view adopted by the Fourth Circuit

and hold that the Bankruptcy Court was not deprived of

jurisdiction over Mullarkey’s Complaint for failure to make the

determination under § 157(b)(3). We are persuaded that this is
13

the correct approach because § 157(b)(3) only requires that a

bankruptcy judge determine whether a proceeding is core or

non-core. Such a determination does not affect the bankruptcy

court’s power to hear the case. Rather, it affects the form of the

bankruptcy court’s disposition, i.e., whether it is final and

appealable to the district court, or a report and recommendation

to be reviewed by the district court. In addition, the text of

§ 157(b)(3) suggests that a party may waive the right to this

determination by failing to make a timely motion. See, e.g., In

re Sheridan, 362 F.3d 96, 100 (1st Cir. 2004) (“[T]he

protections afforded by the Northern Pipeline core/non-core

distinction may be waived or forfeited, either by (i) consenting

to the bankruptcy court’s treatment of an otherwise non-core

proceeding as core, or (ii) failing to raise or pursue the issue

adequately on appeal.”); In re Johnson, 960 F.2d at 400 (“By

failing to object to the lack of a jurisdictional determination

under 28 U.S.C. § 157(b)(3), and acquiescing to the jurisdiction

of the bankruptcy court to enter dispositive orders . . . Canal and

RED waived any requirement the bankruptcy court had to make

a determination of its jurisdiction under 28 U.S.C.

§ 157(b)(3).”). Fairly interpreted, the purpose of § 157(b)(3) is

to assure that a bankruptcy court acts with the appropriate

adjudicative authority in considering claims in bankruptcy.

While parties may acquiesce in a bankruptcy court’s entry of a

dispositive order within its subject matter jurisdiction, subject

matter jurisdiction may neither be waived nor forfeited by the

parties. Thus, we are satisfied that § 157(b)(3) is not

jurisdictional.
14

The next step in our analysis requires us to determine

whether the Bankruptcy Court had subject matter jurisdiction

over Mullarkey’s Complaint, and if so, whether the claims

contained within it constitute core or non-core proceedings.

This determination will also reveal the Bankruptcy Court’s

adjudicative authority and the District Court’s standard of

review. As our opinion in In re Seven Fields illustrates, we

could proceed by engaging in a two-step analysis in which we

first inquire whether there is federal jurisdiction over

Mullarkey’s proceeding by asking whether the case is “related

to” the bankruptcy, because “related to” is the broadest category

of cases over which federal bankruptcy jurisdiction is exercised.

See 505 F.3d at 260. Pursuant to that approach, we would then

determine whether the matter is core—allowing for the

Bankruptcy Court to issue the final order that it did in this

case—or a non-core matter, in which the Bankruptcy Court was

only permitted to make recommendations to the District Court.

See id. However, if we conclude that the case “arises in” the

bankruptcy proceeding, then by definition the Bankruptcy Court

has both subject matter jurisdiction and the authority to enter

final orders. See id. at 257. Accordingly, we would not need to

follow the two-step approach. We pursue this latter course.

In order to determine whether Mullarkey’s claims fall

within the Bankruptcy Court’s core jurisdiction by “arising in”

the bankruptcy, we must examine the allegations in Mullarkey’s

Complaint. In Halper v. Halper, we adopted a claim-by-claim

approach to determine the extent of a bankruptcy court’s
15

jurisdiction. 164 F.3d 830, 839 (3d Cir. 1999) (citing In re N.

Parent, Inc., 221 B.R. 609, 626 (Bankr.D.Mass. 1998) (“[E]ach

of Debtor’s fourteen causes of action will have to be separately

analyzed to determine whether it falls within the bankruptcy

court’s core jurisdiction.”)). In the case at bar, the Complaint

was filed pro se. Like many pro se pleadings, it is not a model

of clarity. We think, however, that it is fair to characterize

Mullarkey’s submissions to the Court as follows:

1. That the Defendants knowingly and fraudulently

concealed from the trustee $375,000 belonging to

his estate.

2. That the Defendants knowingly and fraudulently

made a false certification to the bankruptcy court

under penalty of perjury.

3. That the Defendants presented a false claim of

$182,000 to the bankruptcy court.

4. That the Defendants attempted to obtain property

title in a fraudulent manner.

5. That the Defendants committed the crime of

solicitation of conspiracy.

6. That these acts occurred over the course of

several years and caused economic injury.

7. That the Defendants were involved in a
 As to the remaining portion of Mullarkey’s Complaint, 7

those matters are subsumed in ¶¶ 1–3 and ¶ 9, or are otherwise

too vague. Nor do we believe they would be the basis for any

additional monetary award for Mullarkey. The allegations do

not appear to be sufficient to state a civil claim for violations of

the federal RICO statute, whether it be for mail fraud, wire fraud

or bankruptcy fraud. See 18 U.S.C. § 1964. Furthermore, while

Mullarkey asserted in his opening brief that he could seek a civil

remedy for the Tamboers’ violation of the federal RICO statute,

he failed to present any argument in support. Thus, we deem

this claim to be waived. Laborers’ Intern. Union of N. Am.,

16

conspiracy.

8. That the Defendants fraudulently foreclosed on

the property with a bogus lien.

9. That the Defendants concealed the sale of the

property from the bankruptcy court/trustee

through false statements.

10. That the Defendants have violated the RICO

statute. 

We are satisfied that these allegations state, at least, a

claim for fraud with regard to an asset of the bankruptcy estate,

as the alleged fraud occurred during the bankruptcy process

itself. The allegations of fraud presented in paragraphs one

through four and nine are predicated on conduct that occurred

during the bankruptcy process. As such, the alleged fraud 7
AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d

Cir. 1994) (citation omitted) (“An issue is waived unless a party

raises it in its opening brief, and for those purposes ‘a passing

reference to an issue . . . will not suffice to bring that issue

before this court.’”); United States v. Pelullo, 399 F.3d 197, 222

(3d Cir. 2005) (“It is well settled that an appellant’s failure to

identify or argue an issue in his opening brief constitutes waiver

of that issue on appeal.”).

17

“implicated the integrity of the entire bankruptcy process” and

was “inseparable from the bankruptcy context.” See In Re Seven

Fields, 505 F.3d at 260–61. If we accept Mullarkey’s

allegations as true, the Bankruptcy Court granted relief from the

automatic stay as a result of the conduct of the Defendants,

thereby allowing the Defendants to proceed with the foreclosure

and sale of Mullarkey’s share of the property. If, but for the

Defendants’ conduct, the disposition of the property would have

been otherwise and would have resulted in additional funds for

the bankruptcy estate, it appears that the conduct of the

Defendants implicated the integrity of the bankruptcy process.

Thus, the allegations of misconduct here are similar in nature to

the misconduct which our Court was concerned with in In Re

Seven Fields and which we concluded fell within the bankruptcy

court’s core jurisdiction. 

 In In re Seven Fields, the bankruptcy court exercised

jurisdiction over a complaint alleging state law claims of

professional negligence, fraud and deceit, and negligent
18

misrepresentation against the accounting firm of Ernst & Young.

505 F.3d at 239. The complaint alleged that “as a result of the

work that Ernst & Young performed during the bankruptcy

proceedings and its representations to the bankruptcy court, the

bankruptcy court deemed the Debtors to be insolvent.” Id. at

261. The complaint further alleged that these representations of

insolvency were “a significant factor in bringing about the

court’s confirmation of the plan.” Id. Essentially, the parties

were led to believe that they were in serious debt and, because

of that, the parties sold their assets at below market value,

suffering losses on their investments and failing to realize a

return of the full amount of their investments. Id. at 241. In

concluding that “aris[ing] in” jurisdiction was present, our Court

noted that the claims arose pre-confirmation inasmuch as the

conduct on which the parties predicated the claims occurred

during the bankruptcy process. Id. at 260. Second, we noted

that the alleged malpractice “implicated the integrity of the

entire bankruptcy process” and was “inseparable from the

bankruptcy context.” Id. at 260–61. 

While our In Re Seven Fields holding involved

allegations of professional malpractice, the same concern for

misconduct that directly affects the bankruptcy estate exists in

the present case. Indeed, our Court stated that “few issues are

as important in the bankruptcy process as the bankruptcy court’s

conclusion as to the solvency of a debtor. The solvency analysis

is the cornerstone of the distribution plan. Here, both the

integrity of the bankruptcy process and the solvency of the
19

Debtors have been drawn into question.” Id. Presumably, in our

case, Mullarkey’s interest in the property at issue would have

had an effect on the bankruptcy court’s evaluation of his

solvency had he been able to realize the value of that interest

through sale of the property. 

Based on the foregoing, we conclude that the Bankruptcy

Court had subject matter jurisdiction over the Complaint filed by

Mullarkey. Because the matters were core, the Court properly

exercised final adjudicative authority over the matter, and the

District Court did not err in applying a deferential standard of

review.

III.

The Bankruptcy Court erred, however, with respect to the

merits. On April 11, 2005, the Bankruptcy Court filed an order

granting the Defendant’s Motion to Dismiss Mullarkey’s

Complaint. The Bankruptcy Court held that Mullarkey’s claims

were precluded by the doctrines of res judicata, collateral

estoppel, and alternatively, the entire controversy doctrine,

because “[a]ll of [his] arguments have been repeatedly rejected

by this Court, by the district court on appeal and on subsequent

motions for reconsideration, as well as by the state court.”

Based on the record before us, we are compelled to disagree. 

A. 
20

As part of its analysis of the res judicata and collateral

estoppel doctrines, the Bankruptcy Court noted that there is no

dispute as to party identity. It also found “that the claims and

issues involving [Mullarkey] and the Defendants . . . are

identical to those previously raised and litigated not only in this

Court, but in the district and state courts as well.” That Court

stated that the language in Mullarkey’s present Complaint is

similar to submissions he made in prior proceedings before the

Bankruptcy Court and other courts. Finally, the Bankruptcy

Court asserted that all of Mullarkey’s claims were considered

and rejected in “its initial determination granting the Tamboers

relief from the automatic stay in March 2001, as well as in the

Debtor’s motion for a stay of the Stay Relief Order.” 

The doctrine of res judicata bars not only claims that

were brought in a previous action, but also claims that could

have been brought. Post v. Hartford Ins. Co., 501 F.3d 154, 169

(3d Cir. 2007). It “protect[s] litigants from the burden of

relitigating an identical issue with the same party or his privy

and . . . promot[es] judicial economy by preventing needless

litigation.” Id. (quoting Parklane Hosiery Co. v. Shore, 439

U.S. 322, 327 (1979)). Both New Jersey and federal law apply

res judicata or claim preclusion when three circumstances are

present: “(1) a final judgment on the merits in a prior suit

involving (2) the same parties or their privies and (3) a

subsequent suit based on the same cause of action.” Id. (quoting

Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.

1991)).
21

In addition, New Jersey courts bar the relitigation of

finally determined issues through the doctrine of collateral

estoppel. Collateral estoppel “bars relitigation of any issue

which was actually determined in a prior action, generally

between the same parties, involving a different claim or cause

of action.” Tarus v. Borough of Pine Hill, 916 A.2d 1036, 1050

(N.J. 2007) (quotations omitted). A party asserting collateral

estoppel must show that 

(1) the issue to be precluded is identical to the

issue decided in the prior proceeding; (2) the issue

was actually litigated in the prior proceeding; (3)

the court in the prior proceeding issued a final

judgment on the merits; (4) the determination of

the issue was essential to the prior judgment; and

(5) the party against whom the doctrine is asserted

was a party to or in privity with a party to the

earlier proceeding.

Twp. of Middletown v. Simon, 937 A.2d 949, 954 (N.J. 2008).

The application of the collateral estoppel doctrine is not

automatic, and should not be applied “if there are sufficient

countervailing interests.” Velasquez v. Franz, 589 A.2d 143,

153 (N.J. 1991) (quoting In re Coruzzi, 95 N.J. 557, 568

(1984)). Importantly, this doctrine precludes relitigation only of

questions “distinctly put in issue” and “directly determined”

adversely to the party against which the estoppel is asserted.

N.J.-Phila. Presbytery of the Bible Presbyterian Church v. N.J.

State Bd. of Higher Educ., 654 F.2d 868, 876 (3d Cir. 1981)
 Section 362(e) reads: 8

 

(1) Thirty days after a request under subsection

(d) of this section for relief from the stay of any

act against property of the estate under subsection

(a) of this section, such stay is terminated with

respect to the party in interest making such

request, unless the court, after notice and a

hearing, orders such stay continued in effect

pending the conclusion of, or as a result of, a final

hearing and determination under subsection (d) of

22

(quoting City of Plainfield v. Public Serv. Gas and Elec., 412

A.2d 759, 765–66 (N.J. 1980)). “Moreover, under the New

Jersey rule, if the judgment is based on one or more of several

grounds, but does not expressly rely on any of them, none is

conclusively established, since a subsequent court cannot tell

what issue or issues were in fact fully adjudicated.” Id. (citing

Ettin v. Ava Truck Leasing, Inc., 251 A.2d 278, 287 (N.J.

1969)). 

The Bankruptcy Court’s reliance on its stay proceedings

to support preclusion, either by res judicata or collateral

estoppel, was error. The prior bankruptcy orders respecting the

motion to stay were not final judgments, and by their nature

cannot have preclusive effect on the instant action. The hearing

on a motion for relief from stay is meant to be a summary

proceeding, and the statute requires prompt action by the

bankruptcy court. 11 U.S.C. § 362(e). Section § 362(e) 8
this section. A hearing under this subsection may

be a preliminary hearing, or may be consolidated

with the final hearing under subsection (d) of this

section. The court shall order such stay continued

in effect pending the conclusion of the final

hearing under subsection (d) of this section if

there is a reasonable likelihood that the party

opposing relief from such stay will prevail at the

conclusion of such final hearing. If the hearing

under this subsection is a preliminary hearing,

then such final hearing shall be concluded not

later than thirty days after the conclusion of such

preliminary hearing, unless the 30-day period is

extended with the consent of the parties in interest

or for a specific time which the court finds is

required by compelling circumstances.

(2) Notwithstanding paragraph (1), in a case

under chapter 7, 11, or 13 in which the debtor is

an individual, the stay under subsection (a) shall

terminate on the date that is 60 days after a

request is made by a party in interest under

subsection (d), unless--

(A) a final decision is rendered by the court

during the 60-day period beginning on the date of

the request; or

(B) such 60-day period is extended--

(i) by agreement of all parties in interest; or

(ii) by the court for such specific period of time as

the court finds is required for good cause, as

23
described in findings made by the court.

11 U.S.C. § 362. 

24

provides that a bankruptcy court must hold a preliminary hearing

on a motion to lift the stay within thirty days from the date the

motion is filed, or the stay will be considered lifted. Id. In

addition, relief from a stay is obtained by a simple motion,

Fed.R.Bankr.P. 4001, and it is a “contested matter,” rather than

an adversary proceeding. Grella v. Salem Five Cent Sav. Bank,

42 F.3d 26, 33 (1st Cir. 1994) (citing Fed.R.Bankr.P. 9014;

Advisory Committee Note to Fed.R.Bankr.P. 7001 (“[R]equests

for relief from the automatic stay do not commence an adversary

proceeding.”)). 

The First Circuit in Grella recognized that a hearing on

a motion for relief from stay is a “summary proceeding of

limited effect,” and that

[t]he limited grounds set forth in the statutory

language, read in the context of the overall

scheme of § 362, and combined with the

preliminary, summary nature of the relief from

stay proceedings, have led most courts to find that

such hearings do not involve a full adjudication

on the merits of claims, defenses, or

counterclaims, but simply a determination as to

whether a creditor has a colorable claim to

property of the estate. 
 The First Circuit cited as substantial authority for this 9

proposition: Estate Construction Co. v. Miller & Smith Holding

Co., Inc., 14 F.3d 213, 219 (4th Cir. 1994) (hearings to lift the

stay are summary in character, and counterclaims are not

precluded later if not raised at this stage); In re Vitreous Steel

Prod. Co., 911 F.2d 1223, 1232 (7th Cir. 1990) (questions of the

validity of liens are not at issue in a § 362 hearing, but only

whether there is a colorable claim on property); In re Johnson,

756 F.2d 738, 740 (9th Cir. 1985), cert. denied, 474 U.S. 828

(1985) (relief from stay hearings are limited in scope to

adequacy of protection, equity, and necessity to an effective

reorganization, and validity of underlying claims is not

litigated); Nat’l Westminster Bank, U.S.A. v. Ross, 130 B.R. 656,

658 (Bankr. S.D.N.Y.), aff’d, 962 F.2d 1 (2d Cir. 1991)

(decision to lift stay does not involve determination of

counterclaims, and thus those claims are not precluded later).

25

42 F.3d at 32–33. The Court concluded that “[t]he statutory 9

and procedural schemes, the legislative history, and the case law

all direct that the hearing on a motion to lift the stay is not a

proceeding for determining the merits of the underlying

substantive claims, defenses, or counterclaims.” Id. at 33. As

the Seventh Circuit also pointed out, at issue in a § 362 hearing

is only whether there is a colorable claim of a lien on property

of the estate. In re Vitreous Steel Prod. Co., 911 F.2d 1223,

1234 (7th Cir. 1990). As such, it held that the determination of

the § 362 motion was not a bar to the prosecution of the

adversary complaint before it. Id. at 1234. It explained that
 The documents filed by Mullarkey’s attorney opposing the 10

Motion to Vacate do not explicitly contain any allegations of

fraudulent conduct. The documents do detail two attempts by

Mullarkey to sell his property. The documents indicate that he

secured a willing buyer on April 11, 2000, for $480,000, of

which $240,000 would go to Mullarkey. His Chapter 13 plan

provided for payment of his share of his debt from the sale

proceeds, and he planned to amend his plan to provide for the

treatment of the Defendants as secured creditors. The $240,000

sum was $43,000 more than the amount claimed to be due to the

Defendants. The submissions to the Bankruptcy Court also

contended that the Defendants failed to produce certain

26

Collateral estoppel is not a bar because the only issues

necessarily decided at the § 362 hearing were whether

the Bank had a colorable claim of a lien and whether the

amount of that lien exceeded the value of the property.

It was not necessary to reach questions of . . . collu[sion]

with the Bank, or questions of preferential transfers

under § 547, or questions of fraudulent conveyances

under § 548, or questions of commercial reasonableness

of the sale under state law. Indeed, none of these issues

could properly have been raised, and therefore the § 362

hearing was not res judicata as to those issues. 

Id.

Here, the initial bankruptcy order vacating the automatic

stay, dated March 13, 2001, is brief and does not suggest the

basis upon which the court granted relief from the stay. There 10
documents and preliminary subdivision could not be obtained

without them. Mullarkey alleges that the Defendants could have

reapplied for subdivision approval when it lapsed, but failed to

do so. As a result, Mullarkey could not obtain the documents he

needed to sell the land until November 5, 2000, and at that time

he reapplied for subdivision. It appears during the course of this

that Mullarkey lost his initial buyer. Also before the Bankruptcy

Court was the contention that Mullarkey had another buyer on

March 6, 2001, for $329,000, of which he would have been

entitled to half. This amount would have been less than what

the Defendants claimed that he owed them. 

 On May 29, 2001, Mullarkey, then proceeding pro se, 11

moved the Bankruptcy Court to vacate the previous order

vacating stay. In an order as brief as the first, and with similar

lack of explanation, his motion was denied on June 19, 2001.

The docketing record on appeal indicates that after the

Bankruptcy Court initially vacated the stay, Mullarkey sent the

27

is nothing in the record to suggest that any allegations of fraud

had been made up to this point. It would certainly be reasonable

to infer that the bankruptcy judge vacated the stay because of

Mullarkey’s continued failure to make his regular monthly

mortgage payments outside of his Chapter 13 plan, as well as his

failure to sell his interest in the property. In light of the record

on appeal, and the summary nature of stay proceedings in

general, we conclude that the Bankruptcy Court’s initial grant of

relief does not have preclusive effect on Mullarkey’s

Complaint.11
Court a letter detailing a scheme by the Defendants. Mullarkey

essentially argued that the Defendants had devised a plan to

intentionally deny him his share of partnership assets, and were

effectuating that plan by making misrepresentations to the

bankruptcy court in order to have the stay lifted so they could

proceed with an outside contract to sell the property. The record

gives no indication that these allegations were litigated,

considered and rejected by the Bankruptcy Court. If they were

rejected by the Court, there is no indication that they were

essential to its judgment. Indeed, it is possible that the orders

were based on one or more of several grounds, but neither order

expressly relies on any of them, none is conclusively

established, and, as such, we fail to see how this Court can tell

for purposes of claim or issue preclusion what issue or issues

were in fact fully adjudicated. Thus, this order does not have

preclusive effect over the instant Complaint for the same

reasons the Bankruptcy Court’s initial order does not have

preclusive effect.

28

The Bankruptcy Court also indicated that the New Jersey

state court foreclosure proceedings have preclusive effect over

the instant Complaint. We are at a loss to determine how to

afford these proceedings preclusive effect. The record on

appeal provides us no indication as to whether there was a

merits determination during the New Jersey state court’s

foreclosure proceeding. The Defendants initiated a foreclosure

action in state court and a judgment of foreclosure was entered

on March 25, 1999 when Mullarkey failed to appear and a

Sheriff’s Sale was scheduled for May 10, 1999. The Sheriff’s
29

Sale did not take place as scheduled and it subsequently was

stayed when Mullarkey filed a Chapter 13 bankruptcy petition.

After the Bankruptcy Court vacated the stay on March 13, 2001,

Mullarkey also sought to stay the Sheriff’s Sale in state court.

The state court denied Mullarkey’s request after a hearing, and

the property was sold on or about July 6, 2002, to the Tamboers.

The record, by way of the Bankruptcy Court’s order

dismissing Mullarkey’s Complaint, does indicate that Mullarkey

submitted a certification to the state court in support of his

motion to stay the Sheriff’s Sale, and that in it he specifically

alleged that the Defendants fraudulently stated that the mortgage

was due, that the Defendants fraudulently concealed the contract

of sale for the property from him and the Bankruptcy Court, and

that the Defendants fraudulently stole the property. The text of

the order fails to enlighten us, however, because it establishes

only that Mullarkey attempted to raise his allegations of fraud.

Nothing in the record suggests that the state court actually

considered these allegations, let alone passed on them in

denying the motion. Under New Jersey law, if the judgment of

a court is based on one or more of several grounds, but does not

expressly rely on any of them, none is conclusively established,

in that another court subsequently reviewing that judgment

cannot tell what issue or issues were fully adjudicated. Ettin,

251 A.2d at 287 (citation omitted).

Because this is the only information in the record that

addresses what occurred in the New Jersey state court, we are
30

hesitant to conclude that either the Bankruptcy proceedings or

the New Jersey state court proceedings bar consideration of

Mullarkey’s Complaint. 

B. 

The Bankruptcy Court alternatively relied on the New

Jersey entire controversy doctrine to bar consideration of

Mullarkey’s Complaint. This doctrine

requires that a person assert in one action all

related claims against a particular adversary or be

precluded from bringing a second action based on

the omitted claims against that party. This reflects

New Jersey’s view that the “entire controversy,

rather than its constituent causes of action, is the

unit of litigation. A plaintiff must seek complete

vindication of the wrong he charged.”

Melikian v. Corradetti, 791 F.2d 274, 279 (3d Cir. 1986)

(citations omitted). Under the entire controversy doctrine, a

party cannot withhold part of a controversy for later litigation

even when the withheld component is a separate and

independently cognizable cause of action. Paramount Aviation

Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999). The doctrine

has three purposes: (1) complete and final disposition of cases

through avoidance of piecemeal decisions; (2) fairness to parties

to an action and to others with a material interest in it; and (3)

efficiency and avoidance of waste and delay. Id. (citing
31

DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995)). As an

equitable doctrine, its application is flexible, with a case-by-case

appreciation for fairness to the parties. Id. The entire

controversy doctrine does not apply to bar component claims

that are unknown, unarisen, or unaccrued at the time of the

original action. Mystic Isle Dev. Corp. v. Perskie & Nehmad,

662 A.2d 523, 530 (N.J. 1995) (citations omitted). 

As is reflected by our determination that Mullarkey’s

claim is a core matter, we find that it relates to conduct that was

intrinsic to both the bankruptcy and foreclosure proceedings

(which were occurring simultaneously). As Mullarkey

characterizes it, “the prior proceeding itself [was] the alleged

vehicle of the defendant’s misconduct.” In such an instance, it

seems illogical and unfair to hold the prior proceeding

preclusive of subsequent claims relating to that misconduct.

See, e.g., K-Land Corp. No. 28 v. Landis Sewerage Auth., 800

A.2d 861, 868 (N.J. 2002) (“The entire controversy doctrine [is]

an equitable preclusionary doctrine whose purposes are to

encourage comprehensive and conclusive litigation

determinations, to avoid fragmentation of litigation, and to

promote party fairness and judicial economy and efficiency . . .

.”).

Leisure Technology v. Klingbeil Holding Co., 349 A.2d

96 (N.J. Super. 1975), reiterates the importance of the entire

controversy doctrine and confirms that it is applicable to

foreclosure proceedings. However, it illustrates that the entire
 New Jersey Rule of Court 4:7-1 provides, in relevant part: 1

“Except as otherwise provided by R. 4:64-5 (foreclosure

actions) and R. 4:67-4 (summary actions), a pleading may state

as a counterclaim any claim against the opposing party whether

or not arising out of the transaction or occurrence that is the

subject matter of the opposing party's claim.” In turn, R. 4:64-5,

provides in part, “Unless the court otherwise orders on notice

and for good cause shown, claims for foreclosure of mortgages

shall not be joined with non-germane claims against the

mortgagor or other persons liable on the debt. Only germane

counterclaims and cross-claims may be pleaded in foreclosure

actions without leave of court. Non-germane claims shall

include, but not be limited to, claims on the instrument of

obligation evidencing the mortgage debt, assumption

agreements and guarantees.”

32

controversy doctrine has a narrower application to foreclosure

proceedings, extending only to “germane” counterclaims.1

Leisure Tech., 137 A.2d at 98–99. “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.” Id. In Leisure Technology, the trial

judge had granted the plaintiff’s motion to strike the defendant’s

first affirmative defense of fraudulent conduct on the part of the

plaintiff. Id. at 97. Specifically, the defendant alleged that the

plaintiff had breached the underlying agreement in relation to

which the mortgage had been executed, thereby causing the

defendant to be unable to make his mortgage payments. Id. In
33

addition, the judge also granted the plaintiff’s motion to sever

the defendant’s counterclaim and transfer it to the Law Division.

Id. On appeal, the superior court concluded that the trial judge

took too narrow a view of the scope of permissible Chancery

litigation. Id. at 98. The court noted that, “here the thrust of the

counterclaim is the assertion that plaintiff had breached the

underlying agreement in relation to which the mortgage was

executed and interfered with defendants’ rights under that

agreement. In the usually understood sense of the word, these

claims were germane to the foreclosure action.” Id. at 99.

 Because counterclaims in foreclosure proceedings must

be “germane,” and because germane claims are those “arising

out of the mortgage transaction which is the subject matter of

the foreclosure action,” we are satisfied that the claims

Mullarkey asserted then, and now, are not germane to the

foreclosure proceeding. Indeed, Mullarkey does not contend

that the Defendant’s actions caused the default of his mortgage

obligations. Rather, his claims are based on the actions and

representations of the Tamboers during the bankruptcy

proceedings. 

Ultimately, given the nature of the case and the fact that

Mullarkey proceeded pro se during much of it, it is difficult for

us to discern what specific claims he is now alleging as

compared to which claims he did and did not raise previously.

More importantly, it is unclear if Mullarkey could have raised

the present claims in foreclosure, i.e., whether they had accrued
 The motions sought: 1) a discretionary change in venue to 1

the district court; 2) joinder of Steven Kartzman (Mullarkey’s

former attorney) as a necessary party; 3) “a reference to a

34

at that time or were even justiciable. Because the entire

controversy doctrine is an equitable principle under which the

Court may exercise its judicial discretion based on the particular

circumstances inherent in a given case, Mystic Isle Dev. Corp.,

662 A.2d at 529–30, we decline to apply the doctrine in this

case. Indeed, the New Jersey courts in applying the entire

controversy doctrine have displayed a heightened concern for

pro se litigants, particularly in summary or non-traditional

proceedings. See, e.g., Cafferata v. Peyser, 597 A.2d 1101,

1104 (N.J.Super.A.D. 1991) (“It would obviously be

counterproductive in the extreme were a preclusionary rule

enforced in such a way as to penalize, without any concomitant

benefit to the parties or to the system, a pro se litigant’s

participation in the small claims mediation process or other

expedited processing mechanism. Such enforcement would

convert the entire controversy doctrine from an equitable device

into a trap for the unsuspecting. That is not its function.”).

IV.

Finally, both parties agree that the District Court

reviewed the wrong Bankruptcy order when it rejected

Mullarkey’s appeal of the Bankruptcy Court’s four interlocutory

orders. Mullarkey initially appealed the orders to the 1
prosecuting authority”; and 4) reconsideration of the order

dismissing one of the defendants to his complaint.

35

Bankruptcy Court, and they were eventually transferred to the

District Court where they were given civil action number 05-

2010. On appeal, in an order bearing the same civil action

number, the District Court referred to the appeal as “from an

April 11, 2005 Order of the Bankruptcy Court dismissing a

Complaint filed by Richard Mullarkey.” Accordingly, on

remand the District Court should consider the merits of

Mullarkey’s appeal of the Bankruptcy Court’s denial of his four

motions. 

V. 

Because the record before us counsels a conclusion

that the Bankruptcy erred on the merits with respect to its

holding that Mullarkey’s claims are barred by various

preclusion doctrines, we will reverse and remand to the

District Court to consider the merits of Mullarkey’s claims, as

well as his appeal of the Bankruptcy Court’s denial of his four

motions.