SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2220-19

KELLY WILLIAMS,

Plaintiff-Respondent,

v.

GLUCK & TOBIN, ESQS.

and IRVING TOBIN,

Defendants-Appellants.

__________________________

Submitted January 27, 2021 – Decided March 23, 2021

Before Judges Ostrer and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-4165-17.

LisaBeth Klein, attorney for appellants.

Henry P. Wolfe and David C. Ricci, attorneys for 

respondent.

PER CURIAM 

Defendants Gluck & Tobin, Esqs. and Irving Tobin appeal from the

November 22, 2019 order, which awarded plaintiff Kelly Williams counsel fees 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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and costs totaling $20,852.80 and reaffirmed a prior award of $5000 in statutory 

damages to plaintiff. Defendants also seek reversal of the August 22, 2019 

denial of their motion to amend their answer, and the companion orders dated 

August 30, 2019 orders, which granted summary judgment to plaintiff, and 

denied such relief to defendants.

1

 We affirm.

Plaintiff resided in Roselle Park, and rented an apartment unit from Fred 

Bonda on October 1, 2015. In conjunction with her tenancy, she received a 

public assistance rent subsidy and qualified for Section 8 housing. Defendants 

represented Bonda in filing numerous summary dispossess actions against 

plaintiff. Gluck & Tobin, Esqs. is a law firm owned and operated by defendant 

Irving Tobin, Esquire. 

On October 11, 2016, defendants filed a summary dispossess action on 

behalf of Bonda. Their complaint was dismissed after plaintiff paid her overdue 

rent. Subsequently, defendants filed five more summary dispossess actions 

against plaintiff. In each of its summary dispossess complaints, defendants 

demanded plaintiff pay not only outstanding rent, but late charges, lock and key 

1

 In their notice of appeal and civil case information statement, defendants did 

not designate the August 22, 2019 and August 30, 2019 orders as orders from 

which they appealed, yet, contrary to Rule 2:5-1, they presented arguments in 

their brief regarding these orders.
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replacement fees, and attorney fees. Although the summary dispossess actions 

were collectively dismissed for reasons we need not address in the instant 

appeal, defendants' filings prompted plaintiff to sue defendants. 

On August 9, 2017, plaintiff filed a Special Civil Part complaint against 

defendants, alleging that one of their summary dispossess complaints violated 

the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692.2 

Defendants disputed that they qualified as debt collectors under the FDCPA or 

that they engaged in unfair debt collection practices. Following a multi-day 

trial, the Special Civil Part judge issued a written opinion on May 31, 2018, 

which stated, in part, 

defendants were debt collectors who engaged in unfair 

debt collection practices under the FDCPA. Moreover 

. . . their conduct was abusive to the plaintiff when they 

filed [five] unwarranted summary dispossess actions 

against her, seeking rent that was paid, [and her 

tenancy] prohibited attorney fees and late charges, as 

2

 Congress enacted the FDCPA to "eliminate abusive debt collection practices 

by debt collectors, to insure that those debt collectors who refrain from using 

abusive debt collection practices are not competitively disadvantaged, and to 

promote consistent State action to protect consumers against debt collection 

abuses." 15 U.S.C. § 1692e. A person "who regularly collects or attempts to 

collect, directly or indirectly, debts owed or due or asserted to be owed or due 

another" is deemed a debt collector under the FDCPA. 15 U.S.C. § 1692a6. The 

Act prohibits a debt collector from using "any false, deceptive, or misleading 

representation or means in connection with the collection of any debt" including 

"[t]he false representation of the character, amount or legal status of [the] 

debt[.]" 15 U.S.C. § 1692(e)(2)(A).
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well as, other miscellaneous fees . . . . [T]he complaints 

were false, misleading, and deceptive and defendants' 

actions were prohibited under sections 1692e and 1692f 

of the FDCPA.

Accordingly, the judge awarded plaintiff $1000 in statutory damages and on 

August 15, 2018, granted plaintiff counsel fees and costs in the sum of 

$25,604.53. 

While the Special Civil Part action was pending, on November 21, 2017, 

plaintiff filed a Law Division action against defendants, based on one of the five 

summary dispossess actions filed by defendants which had not been addressed 

in the Special Civil Part case. Similar to her allegations in the Special Civil Part 

suit, plaintiff alleged defendants violated the FDCPA by trying to collect late 

charges and counsel fees in a particular summary dispossess action, knowing 

she was a Section 8 tenant. On March 30, 2018, plaintiff amended her complaint 

to address the remaining FDCPA violations she alleged arose from four other 

summary dispossess actions defendants filed on behalf of Bonda. On July 13, 

2018, plaintiff filed a second amended complaint to join defendant Irving Tobin 

as a party to the suit. Defendants answered this complaint on August 27, 2018

and included the following affirmative defenses: failure to state a claim; laches;

unclean hands; res judicata; and equitable estoppel. 
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On March 29, 2019, plaintiff moved for summary judgment. Defendants 

sought and received two lengthy adjournments of this motion to July 12, 2019. 

On June 26, 2019, instead of responding to the pending summary judgment 

motion, defendants moved for leave to file and serve an amended answer to

assert plaintiff's action should be precluded under the entire controversy 

doctrine (ECD). Defendants conceded they previously "inadvertently omitted 

the mention of th[is] Affirmative Defense." The parties consented to adjourn 

the summary judgment motion until defendants' motion for leave to amend was 

decided. On August 8, 2019, defendants filed a response to plaintiff's summary 

judgment motion, which relied on the ECD. Thus, the merits of plaintiff's 

summary judgment claims were essentially uncontested. Also, on August 8, 

2019, defendants filed a cross motion seeking summary judgment and dismissal 

of plaintiff's second amended complaint. 

On August 22, 2019, the Law Division judge denied defendants' motion 

to amend, finding "[t]he discovery end date is long pas[t]. The proposed 

amendment seeks to raise the [ECD,] which would be prejudicial at this late 

date. Laches analysis is appropriate and persuasive here." 

On August 30, 2019, the Law Division judge considered the parties' cross 

applications for summary judgment. No one appeared on behalf of defendants. 
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Nonetheless, the judge inquired why plaintiff's pending action could not have 

been handled in the Special Civil Part action. Plaintiff's counsel replied, "Well, 

they could have perhaps," but "[e]ach one of those [actions] is a separate cause 

of action that can be brought separately." Plaintiff's counsel added, "there's 

permissive joinder and then there's mandatory joinder . . . . Permissively, we 

could have brought those cases, just like we brought these five cases now 

together in one lawsuit, but there [was] no obligation for us to bring the other 

cases at that time." 

The Law Division judge then found:

The court has considered this matter. It has been before 

the court for many, many months. Mr. Tobin has 

requested numerous adjournments in this case and is 

claiming unavailability. I don't know the circumstances 

of Mr. Tobin, but this was hung out for an 

extraordinarily long period of time before today's date 

where . . . we scheduled this matter for oral argument 

and somehow Mr. Tobin doesn't appear. At some point 

the plaintiff and plaintiff's counsel are entitled to an end 

date. 

In this case the plaintiff submitted a statement of 

material facts consisting of [seventeen] points, which if 

you follow those . . . points leads one to the conclusion 

that the plaintiff is entitled to this summary judgment 

motion . . . . [Mr. Tobin] admitted all of them except 

the one . . . . Paragraph 17, which states, "The defendant 

did not appeal the court's decision [in the Special Civil 

Part matter], so the ruling is a final judgment on the 

merits." Mr. Tobin, disputes that, he doesn't give a 

reason, in violation of the rules, which he's supposed to 
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do. But I find as fact that he did not do that and that 

[the Special Civil Part] ruling that he is a debt collector 

in the context of this case is the law of the case. And, 

therefore, summary judgment on all of these other 

similar cases that Mr. Tobin filed are subject to the debt 

collection acts and, therefore, plaintiff is entitled to 

summary judgment in this matter. 

Regarding defendants' cross-motion for summary judgment, the judge 

added:

Mr. Tobin made a cross-motion for summary judgment 

where he, once again, is basing the case on the entire 

controversy doctrine. He submitted a single-spaced 

letter brief, which is against the rules and he's simply 

relying on the entire controversy doctrine. I already 

banned that argument because he didn't make it in a 

timely fair way and . . . and, by the way, the entire 

controversy doctrine is an equitable doctrine meant to 

bring cases before the court, as appropriate. I don't find 

anything in this matter bars the plaintiff[] from 

proceeding as [s]he did. I do not find the entire 

controversy doctrine has been violated, to the extent it's 

a firm order and something that the courts can use when 

appropriate. 

The judge granted plaintiff summary judgment and denied defendants' 

cross-motion for summary judgment. Subsequently, plaintiff moved for an

award of counsel fees and costs and final judgment over defendants' objection. 

On November 22, 2019, the Law Division judge awarded plaintiff counsel fees 

and costs totaling $20,852.80 after extensively considering the factors set forth 

in Rule of Professional Conduct (RPC) 1.5. Defendants moved for 
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reconsideration of the November 22, 2019 order, and their motion was denied 

on January 10, 2020,

3 with the judge finding 

With respect to Rule 4:49-2 regarding reconsideration, 

there is nothing new – there is no new information that's 

submitted and the prior decision that I made is not 

incorrect, and nothing was overlooked. 

Mr. Tobin keeps wanting to repeat his argument on the 

entire controversy doctrine, which I dealt with in prior 

decisions. 

On appeal, defendants raise three arguments in their point headings, 

claiming the trial court erred by: (1) applying the incorrect legal standard in its 

denial of defendants' motion to amend their answer to include the entire 

controversy doctrine as an affirmative defense; (2) granting plaintiff's summary 

judgment motion and denying their cross-motion for summary judgment by 

"ignoring the entire body of case law involving the entire controversy doctrine"; 

and (3) awarding counsel fees and costs to plaintiff, "both by violating 

applicable equitable standards, as well as reliance upon its erroneous decisions 

that plaintiff was entitled to summary judgment." 

3 We do not address the January 10, 2020 denial of reconsideration in the instant 

appeal, as this order was not designated as a challenged order in defendants' 

notice of appeal or civil case information statement pursuant to Rule 2:5-1, and 

any argument regarding this order was not briefed. Any issue not raised on 

appeal or briefed is deemed waived. See Pressler & Verniero, Current N.J. Court 

Rules, cmt. 5 on Rule 2:6-2 (2021).
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As a threshold matter, we observe that notwithstanding the arguments 

raised in defendants' point headings, they appealed solely from the trial court's 

November 22, 2019 order. Rule 2:5-1(e)(3)(i) requires the notice of appeal 

"shall designate the judgment, decision, action or rule, or part thereof appealed 

from," and defendants' notice of appeal did not include the August 22, 2019 

order denying defendants' motion to amend, or the August 30, 2019 orders on 

summary judgment. 

"[I]t is only the judgment or orders designated in the notice of appeal 

which are subject to the appeal process and review," and, therefore, defendants 

have "no right to our consideration" of their arguments concerning the validity 

of the August 22, and August 30, 2019 orders. 1266 Apartment Corp. v. New 

Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); see also Park 

Crest Cleaners, LLC v. A Plus Cleaners & Alterations, Corp., 458 N.J. Super. 

465, 472 (App. Div. 2019) (explaining "[a] party's failure to seek review of 

cognizable trial court orders or determinations — by identifying them in the 

notice of appeal — is largely fatal."). For that reason alone, we reject 

defendants' arguments challenging the Law Division judge's rulings as 

embodied in his August 22, and August 30, 2019 orders. 
10 A-2220-19

If we were to review defendants' argument regarding the amendment of 

their answer, we would note that "Rule 4:9-1 requires that a motion for leave to 

amend be granted liberally" in the interest of justice, and that "the granting of a 

motion to file an amended complaint always rests in the court's sound 

discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 

457 (1998); R. 4:9-1. "That exercise of discretion requires a two-step process 

[to determine] whether the non-moving party will be prejudiced, and whether 

granting the amendment would nonetheless be futile." Notte v. Merchs. Mut. 

Ins. Co., 185 N.J. 490, 501 (2005). Thus, "courts are free to refuse leave to 

amend when the newly asserted claim is not sustainable as a matter of law," 

Interchange State Bank v. Rinalid, 303 N.J. Super. 239, 256-57 (App. Div. 

1997), or when made on the eve of trial, Verni ex rel. Burstein v. Harry M. 

Stevens, Inc., 387 N.J. Super. 160, 190 (App. Div. 2006) (citing Pressler & 

Verniero, Current N.J. Court Rules, cmt. 2.2.2 on R. 4:9-1 (2006)). "Other 

considerations include whether the newly-asserted claim would unduly 

prejudice the opposing party, survive a motion to dismiss on the merits, cause 

undue delay of the trial, or constitute an effort to avoid another applicable rule 

of law." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 

485 (App. Div. 2012). In short, a motion to amend is properly denied where its 
11 A-2220-19

"merits are marginal" and "allowing the amendment would unduly protract the 

litigation or cause undue prejudice." Pressler & Verniero, Current N.J. Court 

Rules, cmt. 2.21 on R. 4:9-1 (2021).

Based on these principles, we would perceive no basis to disturb the Law 

Division judge's denial of defendants' proposed amendment. It is 

uncontroverted they waited close to a year to seek the amendment, and did so 

after the time for discovery had ended and plaintiff had moved for summary 

judgment. Also, we cannot ignore that before defendants sought to amend their 

answer at the end of June 2019, they requested and received two lengthy 

adjournments, further delaying this matter. Their only justification for their 

belated request to amend the answer was that they "inadvertently" forgot to add 

the ECD defense. Further, as plaintiff highlights in her brief, "the parties could 

have consented to consolidate the claims" either in the Special Civil Part or the 

Law Division, if defendants had timely raised their purported concerns over 

piecemeal litigation. 

Additionally, to the extent defendants' amendment sought to preclude 

plaintiff's cause of action, we observe that our Supreme Court characterized 

preclusion as "a remedy of last resort." Dimitrakopoulos v. Borrus, Goldin, 

Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 111 (2019). In Mitchell 
12 A-2220-19

v. Charles P. Procini, D.D.S., P.A., the trial judge relied on the ECD to preclude 

plaintiff's action against the defendant for failure to join the defendant and 

dismissed the case. 331 N.J. Super. 445, 449 (App. Div. 2000). On appeal, the 

court reversed the judgment and concluded that the sanction of preclusion was 

not warranted. Id. at 456. "Since dismissal with prejudice is the ultimate 

sanction, it will normally be ordered only when no lesser sanction will suffice 

to erase the prejudice suffered by the non-delinquent party, or when the litigant 

rather than the attorney was at fault." Id. at 452 (quoting Abtrax Pharms., Inc. 

v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995)). "Preclusion is, therefore, 

available as a sanction in the limited circumstances where a lesser sanction is 

not sufficient to remedy the problem." Id. at 453-54. 

As we have indicated, because defendants did not formally appeal from 

the August 30, 2019 orders, those orders are not properly before us for review. 

Nevertheless, we recognize that summary judgment is appropriate if the 

evidence presented "show[s] that there is no genuine issue as to any material 

fact challenged and that the moving party is entitled to a judgment or order as a 

matter of law." R. 4:46-2(c). In determining whether there is a genuine issue 

of fact, courts ask whether "the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving party, are sufficient to 
13 A-2220-19

permit a rational factfinder to resolve the alleged disputed issue in favor of the 

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995). 

"Summary judgment must be granted if 'the pleadings, depositions, 

answers to interrogatories and admissions on file, together with the affidavits, if 

any, show there is no genuine issue as to any material fact challenged and that 

the moving party is entitled to a judgment . . . as a matter of law.'" Town of 

Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). "If there is no 

genuine issue of material fact, [reviewing courts] must then 'decide whether the 

trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting 

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). 

Here, defendants contest the summary judgment rulings by relying on the 

ECD. As we have indicated, the request to amend their answer to assert this 

defense was denied. More importantly, when the Law Division judge ruled on 

the parties' competing summary judgment motions, he found 

plaintiff submitted a statement of material facts 

consisting of [seventeen] points . . . . [Mr. Tobin] 

admitted all of them except the one . . . . Paragraph 17, 

which states, "The defendant did not appeal the court's 

decision [in the Special Civil Part matter], so the ruling 

is a final judgment on the merits." Mr. Tobin, disputes 
14 A-2220-19

that . . . . But I find as fact that he did not do that and 

that [the Special Civil Part] ruling that he is a debt 

collector in the context of this case is the law of the 

case. And, therefore, . . . plaintiff is entitled to 

summary judgment in this matter. 

Defendants do not take issue with these findings, and in particular, do not 

dispute the fact they did not appeal from the Special Civil Part decision whereby 

they were deemed debt collectors under the FDCPA. They also do not contest 

they knew plaintiff was a Section 8 tenant or that they sought to collect late 

charges and attorneys' fees from her, in violation of the FDCPA. Thus, if we 

considered the merits of defendants' summary judgment argument, we are 

persuaded we would have no basis to reverse the August 30, 2019 order. 

Lastly, defendants contend the trial court erred in awarding counsel fees 

and costs to plaintiff. We are not persuaded. 

The FDCPA provides for the award of costs and "reasonable attorney's 

fees as determined by the court." 15 U.S.C. § 1692k(a)(3). Additionally, Rule

4:42-9(a)(8) permits the award of attorney's fee "[i]n all cases where attorney's 

fees are permitted by statute." "In order to determine what constitutes a 

reasonable attorney's fee under the FDCPA, the [c]ourt must employ the wellrecognized 'lodestar' method applicable under other fee-shifting statutes which 

entails multiplying the total number of hours reasonably expended by a 
15 A-2220-19

reasonable hourly rate." Bilazzo v. Portfolio Recovery Assocs., LLC, 876 F. 

Supp. 2d 452, 458 (D.N.J. 2012) (citing Graziano v. Harrison, 950 F.2d 107, 

114 (3d Cir. 1991)). "When the applicant for a fee has carried his burden of 

showing that the claimed rates and number of hours are reasonable, the resulting 

product is presumed to be the reasonable fee to which counsel is entitled." 

Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001) (quoting 

Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 

564 (1986)).

"The amount of attorney fees usually rests within the discretion of the trial 

judge, but the reasons for the exercising of that discretion should be clearly 

stated." Khoudary v. Salem Cnty. Bd. of Soc. Servs., 281 N.J. Super. 571, 578 

(App. Div. 1995) (citations omitted). Here, the Law Division judge 

comprehensively addressed all eight factors outlined under RPC 1.5(a), 

including the hourly rate of, and services expended by, plaintiff's attorney, both 

of which he deemed reasonable. The judge observed, "not that many attorneys 

. . . are familiar with the requirements of the Fair Debt Collections Act and 

[plaintiff's counsel] does meet that" and "has some specialty in that area." 

The judge also found

the troubling part about this motion and the opposition 

is that it is apparent . . . defendants Irving Tobin and his 
16 A-2220-19

law firm, Gluck & Tobin, have taken a scorched earth 

policy and approach in litigation of this matter. 

. . . .

The opposition from Mr. Tobin essentially wants to 

repeat all of the litigation and he submits an extensive 

single-spaced letter brief attempting to go over the 

history of the entire case since it started out with [the 

Special Civil Part judge] who found against Mr. Tobin 

and his firm . . . . Mr. Tobin elects, once again, to repeat 

his arguments at length that this matter presently before 

me shouldn't be considered because of his claim it's 

barred by the entire controversy doctrine.

. . . .

So what really is going on here is Mr. Tobin, again, with 

a scorched earth policy wants to keep repeating and 

delaying and forestalling the day when the defendants, 

including himself, have to pay.

The judge's factual findings and legal conclusions are well supported on 

this record. Accordingly, we are satisfied he did not abuse his discretion when 

awarding plaintiff counsel fees and costs in this matter. 

To the extent not addressed, defendants' remaining arguments lack 

sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Affirmed.