                                     NOT FOR PUBLICATION WITHOUT THE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.




                                                               SUPERIOR COURT OF NEW JERSEY
                                                               APPELLATE DIVISION
                                                               DOCKET NO. A-1696-16T4

LIBERTY GREENS
ASSOCIATION, INC.,

           Plaintiff-Respondent,

v.

DANIEL BERGERON,

           Defendant-Appellant,

and

DEANNA M. MENDEZ,

     Defendant.
__________________________________

                     Submitted July 24, 2018 – Decided December 21, 2018

                     Before Judges Ostrer and Vernoia.

                     On appeal from Superior Court of New Jersey,
                     Chancery Division, Morris County, Docket No. F-
                     004508-14.

                     Daniel Bergeron, appellant pro se.
            Hill Wallack LLP, attorneys for respondent (Elizabeth
            K. Holdren, of counsel and on the brief; Jessica N.
            Baker, on the brief).

      The opinion of the court was delivered by

OSTRER, J.A.D.

      In this foreclosure case, defendant Daniel Bergeron appeals from an

October 31, 2016 order denying his motion to vacate a sheriff's sale and the

court's earlier entry of final judgment. Bergeron argues the legal fees imposed

were inconsistent with association bylaws and that the court did not credit him

for payments allegedly made to plaintiff. We affirm, as the trial court properly

held that collateral estoppel barred Bergeron's legal fees argument, and Bergeron

never presented competent proofs of the claimed payments.

                                        I.

      This case began in 2010. Plaintiff, Liberty Greens Association (LGA), a

townhouse association, filed a suit against Bergeron to recover unpaid fees.1

After a 2011 trial, the court ruled in LGA's favor and entered judgment for

$7,796.35 for past due fees. Liberty Green Ass'n v. Bergeron, No. DC-13587-

10 (Sp. Civ. Jun 28, 2011) ("LGA I").



1
  LGA also obtained judgment against Deanna M. Mendez, who was a party to
the underlying foreclosure action, but she has not filed an appeal.
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                                        2
      LGA also requested legal fees and submitted supporting certifications.

Bergeron did not respond, although the court gave him the opportunity to do so.

The court awarded LGA legal fees of $10,166.68, after concluding that they

were "supported by the Association's governing documents and [were] found to

be reasonable based upon the services provided." Ibid. (citing Surf Cottages

Homeowners Ass'n, Inc. v. Janel Assocs., Inc., 362 N.J. Super. 70 (App. Div.

2003)).

      Following the resolution of LGA I, LGA placed a lien on Bergeron's

property in the amount of $19,030.17, consisting of maintenance charges and

fees, legal fees and other fees and costs. Bergeron continued to shirk his fee

obligations. In September 2013, LGA recorded an amended lien on the property

in the amount of $35,236.51. However, plaintiff later revised that figure to be

$32,399.3, including $14,659.93 in legal fees and $17,740.00 in association fees

and charges.

      On February 4, 2014, LGA filed a complaint seeking foreclosure on

Bergeron's property. Bergeron filed an answer and counterclaim. LGA then

moved for summary judgment and provided a certification detailing the amount

due on the amended lien. Bergeron did not oppose the motion.




                                                                         A-1696-16T4
                                       3
      On October 31, 2014, the trial court granted LGA's motion and struck

Bergeron's answer. The judge found that the unpaid balance then due exceeded

$41,000.     He wrote that LGA established: its standing to foreclose, its

compliance with the Fair Foreclosure Act, the amount due, Bergeron's default,

and the invalidity of his defenses. "Defendants do not allege any additional facts

to support the affirmative defenses in [their] Answer, nor do they articulate what

additional discovery they might request in order to prove these affirmative

defenses."

      Subsequently, LGA moved for final judgment. Bergeron objected to the

amount due and the legal fees. The court granted LGA's motion with minor

adjustments. The court reduced the amount due by $1,311.41 because LGA

miscalculated fees by $260 and previously levied $1,051.41 from Bergeron's

bank account. Bergeron had asked the court to credit payments that were

allegedly made in 2010 but the court refused because the argument was barred

by the doctrine of collateral estoppel, based on the judgment in LGA I. The

court entered final judgment on February 9, 2016, entitling LGA to the sum of

$16,428.59 together with costs, to be taxed, raised and paid out of the premises,

which were to be sold by the Sheriff. After the court denied Bergeron's request

for a stay, the sheriff's sale took place on September 22, 2016.


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                                        4
      Shortly after the sale, Bergeron submitted an order to show cause

challenging the imposition of legal fees and the sheriff's sale.         The court

converted Bergeron's request into a motion to vacate the sheriff's sale and the

final judgment. The court denied Bergeron's motion on October 31, 2016. The

court concluded that the doctrine of collateral estoppel prevented consideration

of Bergeron's challenge to both the legal and association fees.

      Additionally, the court did not find any inconsistencies between LGA's

bylaws and the award of legal fees. The bylaws state:

            In the event that the Board shall effectuate collection of
            said assessment's charges by resort to counsel, and/or
            the filing of a lien, the Board may add to the aforesaid
            assessments of charges a sum or sum of twenty percent
            (20%) of the gross amount due as counsel fees, plus the
            reasonable costs for the preparation, filing and
            discharge of the lien, in addition to such other costs as
            may be allowable by law.

                                       II.

      Bergeron appeals from the October 31, 2016 order and principally makes

two substantive arguments.     First, the trial court should not have applied

collateral estoppel to his challenges to the amount due. Bergeron contends LGA

I only adjudicated four payments through 2010. Therefore, he is not estopped

from asserting arguments regarding payments thereafter.             According to

Bergeron, he properly challenged the amount due, and consequently the validity

                                                                            A-1696-16T4
                                        5
of LGA's lien and its authority to foreclose on the property. Second, the legal

fees requested by LGA did not comply with the bylaws. According to Bergeron,

the trial court once again "deferred its jurisdictional responsibility" to the LGA

I court.

        As a threshold matter, LGA correctly notes that Bergeron seeks to

challenge the LGA I order, the October 31, 2014 summary judgment order, and

the February 9, 2016 order granting a final judgment. However, his appeal of

those orders is out of time. See R. 2:4-1. Our review is confined to the trial

court's October 31, 2016 order.

        We review, for an abuse of discretion, a trial court's decision refusing to

vacate an order entering final judgment under Rule 4:50-1. US Bank Nat. Ass'n

v. Guillaume, 209 N.J. 449, 467-68 (2012). We discern no abuse of discretion

here.

        The doctrine of collateral estoppel applies when five conditions are met:

              (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.



                                                                            A-1696-16T4
                                          6
            [In re Estate of Dawson, 136 N.J. 1, 20 (1994) (citations
            omitted).]

Applying these principles, LGA I estops Bergeron from arguing the validity of

LGA's legal fees. See also Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 523

(2006) (providing exceptions to the general rule of issue preclusion, none of

which apply here).

      First, the issue presented by Bergeron was considered by the court in LGA

I.   The court in LGA I considered argument and certifications from LGA

detailing its legal fees. The court granted LGA the attorney fees only after

deciding they were consistent with the association documents. Second, the

matter was actually litigated. Bergeron was given the opportunity to contest but

never submitted any documents in opposition.            He had a "full and fair

opportunity to litigate the issue" and that is sufficient under the doctrine. In re

Estate of Dawson, 136 N.J. at 20 (quoting Pittman v. LaFontaine, 756 F. Supp.

834, 841 (D.N.J. 1991)); Allesandra v. Gross, 187 N.J. Super. 96, 105-06 (App.

Div. 1982) ("When an issue is properly raised . . . and is submitted for

determination, and is determined, the issue is actually litigated . . . .") (quoting

Restatement (Second) of Judgments § 27 cmt. d (Am. Law Inst. 1982). Third,

the LGA I court issued a final judgment on the matter. Fourth, the issue was



                                                                             A-1696-16T4
                                         7
essential to the allocation of legal fees. Fifth, the two parties in this case are

identical to the parties in LGA I.

      We recognize that collateral estoppel would not have barred Bergeron

from showing that he paid association fees that accrued after the decision in

LGA I. Those fees were not identical to the ones disputed and litigated in LGA

I.

      However, Bergeron failed to present competent evidence of payment to

the trial court and none appears in the record before us. On the motion for

summary judgment, Bergeron failed to present any opposition, let alone present

competent evidence of payment. See Sullivan v. Port Auth. of New York and

New Jersey, 449 N.J. Super. 276, 279-80 (App. Div. 2017) (stating that bare

conclusions and allegations in a pleading are insufficient to defeat a motion for

summary judgement supported by competent evidence).

      In advance of entry of final judgment, Bergeron challenged the amount

due. The court made small adjustments but denied Bergeron's efforts to obtain

credit for payments allegedly made in 2010. The court properly denied these

claims because they were litigated in LGA I and barred by collateral estoppel.

There is nothing in the record to show Bergeron provided proofs of payment for

outstanding fees that accrued after the adjudication in LGA I. At the motion to


                                                                           A-1696-16T4
                                        8
vacate final judgment, Bergeron again did not present the court with competent

evidence concerning proofs of payment.

      Therefore, we shall not disturb the trial court's order denying Bergeron's

motion to vacate the sheriff's sale and its prior order entering final judgment.

      Affirmed.




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