*NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

THOMAS GAGE, :

: Civil Action No. 11-862 (FLW)

Pro Se Plaintiff, :

: OPINION

v. :

:

:

WELLS FARGO BANK, N.A. AS, :

and SOMERSET COUNTY SHERIFF : 

FRANK J. PROVENZANO, :

:

Defendants. :

 :

WOLFSON, District Judge:

This is one of many cases brought by pro se Plaintiff Thomas Gage (“Plaintiff”) in this Court

related to a state court order of foreclosure on his home. In the instant matter, Defendant Wells

Fargo Bank N.A. AS (“Defendant” or “Wells Fargo”) moves to dismiss Counts I and IV of the

Complaint - these counts appear to be the only claims asserted against Wells Fargo. Essentially,

1

Count I alleges that Defendant had no right to foreclose on Plaintiff’s home and Count IV alleges

that Defendant committed criminal acts in enforcing the foreclosure without having any right to do

so. For the reasons that follow, Defendant’s motion is GRANTED. 

1

Defendant Somerset County Sheriff Frank J. Provenzano untimely answered Plaintiff’s

Complaint after a default was entered against him. In that connection, Plaintiff moves for default

judgment. The Court will address these issues herein. However, the Court’s Opinion will only

substantively address Plaintiff’s claims against Wells Fargo. 

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BACKGROUND

For the purposes of this motion, the Court will take the relevant allegations set forth in the

Complaint as true. As indicated by Plaintiff’s description in his Opposition Brief and documents 2

he referenced in his Complaint, on February 13, 2006, Plaintiff executed a Promissory Note in favor

of Mortgage byEquity Source Home Loans, LLC in the amount of $750,000. This Note was secured

by a Mortgage on the real property located at 51 Hillcrest Boulevard, Warren, New Jersey (the

“Property”), executed by Plaintiff and Lucia Gage. According to Defendant, pursuant to a Pooling

and Servicing Agreement, on June 11, 2008, the Mortgage was subsequently assigned to Wells

Fargo. This assignment was recorded in the Somerset County Clerk’s Office on July 1, 2008. 

Notwithstanding the assignment, Plaintiff vehemently disputes that Wells Fargo legitimately held

the Mortgage. 

 While Plaintiff never referenced in the Complaint that he defaulted on the Mortgage, the

documents from the state court foreclosure action reveal that, on or about February 1, 2008, Plaintiff

and Lucia Gage defaulted on the Note and Mortgage, and as a result, a Foreclosure Complaint was

filed by Wells Fargo in the Superior Court of New Jersey, Chancery Division, Somerset County

under Docket No.: F-22089-08. Because no responsive pleading or Answer was ever filed by

Plaintiff or Lucia Gage to the Foreclosure Complaint, a Final Judgment or Foreclosure of the

2

Indeed, the majority of the allegations contained in Plaintiff’s Complaint are conclusory

accusations against the defendants in this case, and as such, the Complaint does not provide a

complete and adequate factual background of the dispute. To the extent the Court references other

facts not in the Complaint, these facts are derived from public record, which the Court is permitted

to consider on a Rule 12(b)(6) motion. See Sandy Hook Watermans Alliance, Inc., v. New Jersey

Sports and Exposition Auth., No. 11-813 (FLW), 2011 U.S. Dist. LEXIS 79488, at *2 n.1 (D.N.J.

Jul. 20, 2011). 

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Property was entered on April 13, 2010. See Final Judgment dated April 13, 2010, p. 1. 

Importantly, Plaintiff does not dispute the existence of the judgment, nor does he dispute the validity

of the judgment, a copy of which is attached to Defendant’s moving papers. See, e.g., Compl., ¶¶

24-26. 

According to Defendant, a sheriffsale was scheduled and held on July 6, 2010, at which time

Wells Fargo was the successful bidder for the Property. On October 28, 2010, a Deed was recorded

in the Somerset County Clerk’s Office transferring the subject property to Wells Fargo. See

Somerset County Recorded Deed dated October 28, 2010. Thereafter, Wells Fargo, pursuant to its

status as owner of the Property, obtained a Writ of Possession and forwarded it to the Sheriff of

Somerset County with instructions to evict the occupants. During the pendency of this motion,

Plaintiff was evicted from the Property. 

Plaintiff initiated this suit on February 14, 2011, seeking, inter alia, “Federal Protection

against the unlawful Foreclosure proceedings by the Defendants and to have the subject property

returned into my name and the Mortgage held by Wells Fargo Bank, N.A. voided.” See Opposition

Brief at p. 7. In that respect, Plaintiff asserts two counts against Wells Fargo - Counts I and IV. 

Both counts challenge Defendant’s right to bring a foreclosure action against Plaintiff and Count IV

additionallyalleges “negligent actions of the Defendants”without specifyingwhat actions committed

by Defendant are alleged to be negligent. In addition, Plaintiff asserted claims against defendant

Provenzano. Because Provenzano failed to answer timely, default was entered against him on April

11, 2011. However, Provenzano filed an answer on April 18, 2011. In the instant matters, Plaintiff

moves for default judgment against Provenzano, and Wells Fargo moves to dismiss those counts

asserted against it by Plaintiff. 

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DISCUSSION

I. Standard of Review

The Federal Rules of Civil Procedure provide that a complaint “shall contain (1) a short and

plain statement of the grounds upon which the court's jurisdiction depends . . . (2) a short and plain

statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment

for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). The purpose of a complaint is “to inform the

opposing party and the court of the nature of the claims and defenses being asserted by the pleader

and, in the case of an affirmative pleading, the relief being demanded.” 5 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a Court

must take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff

“and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled

to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations

omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court “retired” the

language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed

for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561 (quoting

Conley, 355 U.S. at 45-46). Rather, the factual allegations in a complaint “must be enough to raise

a right to relief above the speculative level.” Id. at 555. The Third Circuit summarized the pleading

requirement post-Twombly:

The Supreme Court's Twombly formulation of the pleading standard can be summed

up thus: ‘stating . . . a claim requires a complaint with enough factual matter (taken

as true) to suggest’ the required element. This ‘does not impose a probability

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requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise

a reasonable expectation that discovery will reveal evidence of ‘the necessary

element.’

Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).

In affirming that the Twombly standard applies to all motions to dismiss, the Supreme Court

recently further clarified the 12(b)(6) standard. “First, the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949 (2009). “Second, only a complaint that states a plausible claim for relief

survives a motion to dismiss.” Iqbal, 129 S.Ct. at 1950. Accordingly, “a court considering a motion

to dismiss can choose to begin by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id. In short, “a complaint must do more

than allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with

its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

The Third Circuit recently reiterated that “judging the sufficiency of a pleading is a

context-dependent exercise” and “[s]ome claims requiremore factual explication than others to state

a plausible claim for relief.” West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 98

(3d Cir. 2010). This means that, “[f]or example, it generally takes fewer factual allegations to state

a claim for simple battery than to state a claim for antitrust conspiracy.” Id. That said, the Rule 8

pleading standard is to be applied “with the same level of rigor in all civil actions.” Id. (quoting

Iqbal, 129 S.Ct. at 1953).

II. Rooker-Feldman Doctrine

Defendant argues that because Plaintiff’s claims essentially attack the underlying state court

order of foreclosure, these claims are barred by the Rooker-Feldman Doctrine. Pursuant to that

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doctrine, federal district courts lack subject matter jurisdiction to review and reverse state court

judgments. In re Knapper, 407 F.3d 573, 580 (3rd Cir. 2005). “[A] claim is barred by RookerFeldman under two circumstances; first, if the federal claim was actually litigated in state court prior

to the filing of the federal action or, second, if the federal claim is inextricably intertwined with the

state adjudication, meaning that federal relief can only be predicated upon a conviction that the state

court was wrong.” Id. “[A] federal claim is ‘inextricably intertwined’ with an issue adjudicated by

a state court when (1) the federal court must determine that the state court judgment was erroneously

entered in order to grant the requested relief, or (2) the federal court must take an action that would

negate the state court's judgment.” In re Madera, 586 F.3d 228, 232 (3d Cir. 2009) (quoting Walker

v. Horn, 385 F.3d 321, 330 (3d Cir. 2004)). Where, on the other hand, the federal plaintiff presents

“some independent claim, albeit one that denies a legal conclusion that a state court has reached,”

the doctrine does not apply. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 292

(2005) quoted in Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547-48 (3d Cir.

2006)). In such an instance, jurisdiction is confirmed and the court should then consider “whether

the defendant prevails under principles of preclusion.” Exxon Mobile, 544 U.S. at 292 quoted in

Turner, 449 F.3d at 548.

In addition, Rooker-Feldman applies only to “state court losers . . . complaining of injuries

caused by [a]state-court judgment[ ] rendered before the district court proceedings commenced and

inviting district court review and rejection of [that] judgment.” Gary v. Braddock Cemetery, 517

F.3d 195, 201 (3d Cir. 2008) (quoting Exxon, 544 U.S. at 284) (emphasis added). If no judgment

had been reached in the state court action at the time the federal complaint was filed, there can be

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no “loser.” Whether a judgment has been rendered in a state foreclosure action is a question of state 3

law. See Randall v. Bank One, 358 B.R. 145, 159 n.9 (Bankr. E.D.Pa. 2006) (in reaching its RookerFeldman determination, applying Pennsylvania law to determine nature of foreclosure judgment). 

In addition, it is the date of the complaint that determines, for Rooker-Feldman purposes, whether

a judgment had been rendered. See Gary, 517 F.3d at 201. 

Courts in this circuit have held the Rooker-Feldman doctrine to bar challenges to a New

Jersey foreclosure action in a series of recent cases. Those cases involved plaintiffs seeking to: (1)

reexamine a state court’s refusal to vacate a settled foreclosure-related action, see Siravo v. Country

Wide Home Loan, 349 Fed. Appx. 766, 768 (3d Cir. 2009); (2) have the federal court assume

jurisdiction over a post-Sheriff’s sale ejectment action and enjoin the state court from adjudicating

a summary judgment motion in that action, see Moncrief v. Chase Manhattan Mort. Corp., 275

Fed.Appx. 149, 152-53 (3d Cir. 2008); (3) obtain clear title, see Downey v. Perrault, 2009 WL

3030051, * 1 (D.N.J. Sept. 15, 2009); or (4) rescind the transaction, see In re Madera, 586 F.3d at

232; Ayers-Fountain, 153 Fed. Appx. at 92; Challenger v. U.S. Bank, 2009 WL 708116, *3 (D.N.J.

Mar. 13, 2009).

Here, the Superior Court of New Jersey granted final judgment in the foreclosure action in

favor of Wells Fargo on April 13, 2010 – well before the instant civil complaint was filed in this

Court. Indeed, that the foreclosure judgment had been entered is sufficient to invoke Rooker3

Hence, the Rooker-Feldman doctrine “divests a federal district court of jurisdiction if the

plaintiff's claim was either (1) actually litigated in state court or (2) if the claim is inextricably

intertwined with the prior state court ruling.” Lui v. Commission, Adult Entertainment, De, 369

F.3d 319, 328 n.12 (3d Cir. 2004) (citing Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411,

419 (3d Cir. 2003) (emphasis added)). 

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Feldman. Under New Jersey law, a mortgage foreclosure suit determines the right to foreclose and

the amount due on the mortgage. Sheerer v. Lippman & Lowy, 125 N.J. Eq. 93 (E. & A. 1939);

Central Penn Nat’l Bank v. Stonebridge, Ltd., 185 N.J.Super. 289, 302 (Ch. Div. 1982). See

generally 30A N.J. Prac. Law of Mortgages § 31.25. The foreclosure judgment also entitles the

mortgagee to recover, by way of Sheriff’s sale, the amount due from the land subject to the

mortgage. See N.J.S.A. 2A:50-36; First Union Nat’l Bank v. Penn Salem Marina, Inc., 383

N.J.Super. 562, 570 (App. Div. 2006) rev’d on other grounds by 190 N.J. 342 (2007). Indeed, the

terms of a mortgage foreclosure judgment will include “an order to sell so much of the mortgaged

premises as will be sufficient to satisfy the mortgage and subordinate liens . . . and that an execution

issue . . . commanding the [sheriff] to make sale ....” 30A N.J. Prac. Law of Mortgages § 31.25. 

In this case, not only was there a valid state court foreclosure judgment, eviction proceedings were

also pendingwhen the Complaint was filed, and indeed, Plaintiff has been evicted from the Property. 

Having found that a valid state judgment exists, the Court next determines whether the claims

asserted by Plaintiff against Defendant will undermine the state court judgment.4

Count I of the Complaint claims that Wells Fargo is an “imposter” and that it does not have

any “rights” to foreclose on Plaintiff’s property. In that regard, Plaintiff is attempting to rescind the

4

To rebut Defendant’s bases for preclusion under the Rooker-Feldman doctrine, Plaintiff, in

his Opposition Brief, asserts a litany of statutory and common law violations against Defendant

which do not appear in his Complaint. Although the Court construes a pro se litigant’s submissions

liberally, the Court cannot permit Plaintiff to amend his Complaint through his legal brief. See

Amboy Bancorporation v. Bank Advisory Group, Inc., No. 10-1638, 2011 U.S. App. LEXIS 8494,

at *22 (3d Cir. Apr. 25, 2011)("A plaintiff may not amend his complaint through arguments in his

brief . . ." (citations and quotations omitted)). Moreover, these alleged violations are conclusory in

nature without any factual support. 

 

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underlying state court judgment. These defenses now raised by Plaintiff should have been raised at

the first instance in the state foreclosure action because they are “inextricably intertwined” with the 

state court’s order of foreclosure. Indeed, when a defendant in a state foreclosure action files a

subsequent civil suit, courts have held that any claim that seeks to rescind the mortgage transaction

is barred because it would be “inextricably intertwined with the foreclosure judgment.” Jacobowitz,

2010 WL 1063895 at *2. This is because granting rescission would require the federal court to

invalidate the state foreclosure action. See In re Madera, 586 F.3d at 232 (agreeing with district

court’s conclusion that “granting rescission would amount to finding that no valid mortgage

existed”); Challenger, 2009 WL708116 at (“to the extent Plaintiff seeks rescission of the transaction

and related relief, these claims are barred by Rooker-Feldman, as the state court foreclosure

proceeding was dependent upon the existence of a valid mortgage”) (quoting In re Stuart, 367 B.R.

541, 551 (Bankr. E.D. Pa. 2007)) (internal quotation marks omitted). 

Furthermore, at no time prior to the entry of the judgment did Plaintiff come forward to

appear in the state action or raise issues he now seeks this Court to review. In addition, no appeal

was ever filed. While Plaintiff could have challenged the allegations of the state foreclosure

complaint, he failed to contest it at that time. As a result, a final judgment was entered. 

Accordingly, to the extent Plaintiff’s claim challenges Wells Fargo’s right to bring a foreclosure

action, the Rooker-Feldman doctrine bars Plaintiff from now contesting these issues in this Court

which would directly undermine the validity of the state court judgment. 

Similarly, Count IV is barred byRooker-Feldman. This count first alleges that Wells Fargo,

along with defendant Provenzano, committed “criminal actions in enforcing a Foreclosure and a

‘Writ of Possession’ on the Plaintiff’s home-property without any ‘right’ to do so.” Compl., ¶ 53. 

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Although couched in “criminal actions,” Plaintiff again attacks the state court judgment at this

juncture by averring that Wells Fargo did not have the legal right to bring a foreclosure action against

him. Forthe reasons stated above, to the extent this portion of the claim attempts to rescind the state

court judgment, it is barred by the Rooker-Feldman doctrine. 

Moreover, Plaintiff went on to allege that Defendant’s “negligent action . . . have inflicted

on Plaintiff and his family a grave emotional hardship, such as loss of control over their lives,

marriage distress, depression, and insecurity of their future.” Id. at ¶ 54. However, to the extent

Wells Fargo initiated the eviction process pursuant to the state foreclosure judgment, these

allegations are barred byRooker-Feldman because they are also “inextricably intertwined” with the

order of foreclosure, even if Plaintiff seeks monetary damage in connection with this claim. Indeed,

the imposition of such damages would impair Defendant’s rights under the foreclosure judgment

because the judgment supports the mortgage's validity and confers upon Defendant the right to

foreclose on Plaintiff's property. A determination that Plaintiff is entitled to damages in this respect

would require a finding that the state court erroneously entered the default judgment. See Perkins

v. Beltway Capital, LLC, 773 F. Supp. 2d 553, 559 (E.D. Pa. 2011). Finally, it is important to note

that nowhere in the Complaint does Plaintiff allege that Defendant intentionally or negligently

committed any tort in the process of eviction. Indeed, the theory of Plaintiff’s Complaint against

Defendant is solely premised upon the allegations that Wells Fargo never held Plaintiff’s mortgage

in the first instance and therefore, it lacks standing to bring a foreclosure action against Plaintiff;

unfortunately, these defenses should have been raised in state court. As such, Plaintiff’s claims

against defendant Wells Fargo are barred by the Rooker Feldman doctrine.

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III. Defendant Provenzano

On April 11, 2011, the Clerk of the Court entered default against defendant Provenzano for

failure to answer or otherwise respond to Plaintiff’s Complaint. However, on April 18, 2011,

Plaintiff answered the Complaint, albeit untimely. In the instant matter, Plaintiff moves for default

judgment against Provenzano. Because the Court favors deciding cases on their merits and because

Provenzano has indicted his willingness to defend this action by filing an Answer, the Court will

provide Provenzano an opportunity to respond to Plaintiff’s motion for default judgment within

seven days from the date of the Order accompanying this Opinion. 

As a final note, during the pendency of these motions, Plaintiff was evicted from the 

Property. Subsequently, on August 11, 2011, Plaintiff filed an emergent motion requesting “an

immediate return of the unlawful re-possessed property to Plaintiff.” Having reviewed Plaintiff’s

motion, Plaintiff does not present anything new; rather, he re-asserts similar arguments he raised in

his Opposition Brief to Wells Fargo’s motion to dismiss, as well as the Complaint. Because granting

the emergent motion would necessary invalidate the state court judgment, Plaintiff’s request is

denied. 

Date: September 9, 2011 /s/ Freda L. Wolfson 

Freda L. Wolfson, U.S.D.J. 

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