                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2006

Tilbury v. Aames Home Loan
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1214




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                                                     NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                              NO. 06-1214
                           ________________

                DAVID L. TILBURY; ANN E. TILBURY,
                                            Appellants

                                    v.

       AAMES HOME LOAN, a/k/a Aames Funding Corp, a/k/a Aames
        Financial Corporation; A. JAY MEYERSON, CEO of Aames;
   HAROLD G. BELKOWITZ, Counsel for Aames; FIRST AMERICAN TITLE
INSURANCE COMPANY; GARY L. KERMOTT; NANCY NEWMAN-BROWN;
    GEORGE M. CONWAY, III; STEPHEN MCNALLY; CENLAR F.S.B.;
     MICHAEL W. YOUNG, CEO; KIMBERLY ANN GLOSSO HAGEN;
KELLY LUTZ; NANCY IRWIN; TERRY KANE; KRISTIN SHELLENBERGER;
  ROSEMARY L. LEONARDIS; SHARI SEFFER; MICHAEL S. ACKERMAN;
      JONATHAN M. PREZIOSI; MELISSA A. CHUDEREWICZ, Esq.;
       BRUCE M. SATTIN, Esq.; ANDREW B. FINBERG; GRAIG L.
 WELLERSON, J.S.C.; ADMINISTRATIVE OFFICE OF THE COURTS-STATE
OF NEW JERSEY; PHILIP S. CARCHMAN, J.A.D.; JUDE DELPREORE, T.C.A.;
 RONALD E. BOOKBINDER, J.C.H.; JOHN DOE, and Jane Doe, Operator and/or
                    controller of Court Recording device
                ____________________________________

              On Appeal From the United States District Court
                       For the District of New Jersey
                        (D.C. Civ. No. 05-cv-02033)
                District Judge: Honorable Freda L. Wolfson
              _______________________________________

                Submitted Under Third Circuit LAR 34.1(a)
                          SEPTEMBER 5, 2006
    Before: SLOVITER, SMITH AND VANANTWERPEN, Circuit Judges.

                        (Filed: September 7, 2006)
                       _______________________

                              OPINION
                       _______________________
PER CURIAM

       Appellants, David and Ann Tilbury, appeal from the District Court’s Order

dismissing their complaint and barring them from filing further civil actions related to this

matter in the United States District Court for the District of New Jersey in a pro se

capacity without prior leave of the court. We will affirm the District Court’s judgment

and its decision to issue an order enjoining further pro se filings by the Tilburys.

       The procedural background as well as the factual allegations underlying this cause

of action are well known by the parties and need not be detailed here. Briefly, we note

that appellants have a long tortured litigation history regarding the amount due on their

1985 mortgage. As summarized by the District Court, “the Tilburys have filed no fewer

than seven bankruptcy petitions, three appeals or lawsuits in the United States District

Court, two appeals to [this Court], and numerous state court actions arising in connection

with certain of their loans and mortgages.” District Court Amended Opinion at 3-4. With

respect to their most recent federal filing (i.e., the one underlying this appeal), the District

Court was not exaggerating when it remarked that the Tilburys’ complaint “is an example

of an ‘everything but the kitchen sink’ pleading in which they sue almost everyone ‘under

the sun.’” Id. at 16. According to the Tilburys, appellees have violated, inter alia, the

Truth in Lending Act (“TILA”), Fair Housing Act, Real Estate Settlement Procedures Act

(“RESPA”), Racketeering Influenced and Corrupt Organizations Act (“RICO”), False

Statements Act, United States Constitution and the New Jersey Consumer Fraud Act

during their various dealings with appellants. Additionally, the Tilburys allege that

certain appellees conspired to defraud the Department of Housing and Urban

Development (“HUD”), made false statements to HUD, and committed fraud, negligence

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and breach of contract.

       The complaint was voluntarily dismissed as to defendants Belkowitz, the

Administrative Office of the New Jersey Courts, Philip Carchman, Jude Delpreore, and

Judges Bookbinder and Wellerson. As for the remaining defendants, the District Court

granted the numerous motions to dismiss that had been filed pursuant to Fed. R. Civ. P.

12(b)(6) in an Amended Opinion and Order entered on December 13, 2005. The District

Court found that the majority of the claims asserted by the Tilburys had already been

brought before another court and had been dismissed. Id., citing Tilbury v. Aames, et al.,

Burlington County, Law Division, Case No. L-000667-02. The court further found that

the Tilburys had attempted to amend the complaint filed in the Burlington County case to

include the allegation that the various entities’ conduct arising from the same transaction

and occurrences at issue in the District Court action amounted to a RICO violation, but

that the court in that case denied the Tilburys’ motion for leave to amend because it was,

inter alia, untimely filed. Accordingly, the court concluded that the claims against

Aames, Cenlar and First American Title Insurance Company (“FATICO”), and their

employees and attorneys were barred by New Jersey’s entire controversy doctrine and by

res judicata principles.1

       Defendants Sattin and Finberg were dismissed pursuant to Fed. R. Civ. P. 4(m)

given the Tilburys’ failure to properly effect service of their complaint upon these

defendants, and the claims arising from the proceedings before Judge Wellerson were


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   The following defendants were included in this grouping: 1) Aames and A. Jay
Meyerson, Aames’ CEO; 2) FATICO and FATICO defendants Kermott, Newman-
Brown, Conway, McNally; and 3) Cenlar and Cenlar defendants Seffer, Young, Glosso
Hagen, Lutz, Irwin, Kane, Shellenberger and Leonardis.
                                             3
dismissed as baseless. The District Court continued its analysis by stating that the

Tilburys’ “allegations against the various lawyers, employees of Cenlar, Aames and

FATICO, and the courts are based upon their misguided view that anyone who does not

see things their way or is dealing in an adverse fashion to them must be acting in a

conspiratorial and illegal manner.” Id. After determining that the complaint was

“without any legal basis,” the District Court dismissed it in its entirety.

       The court next turned its attention to defendants’ motions seeking to enjoin the

Tilburys from filing future complaints in the District Court for the District of New Jersey

without first obtaining leave of the court. Having concluded that the Tilburys engaged in

the repeated filing of oppressive and frivolous litigation, the court exercised its inherent

authority under the All Writs Act, 28 U.S.C. § 1651(a), and issued an injunction against

the Tilburys. With the exception of the instant appeal, the court enjoined David and Ann

Tilbury from filing any complaint or papers, when proceeding pro se, “against any of the

named defendants or any employee, agent, or attorney thereof,” without prior leave of the

court. The Tilburys timely appealed.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of a

motion to dismiss de novo, see Alston v. Parker, 363 F.3d 229, 232-33 (3d Cir. 2004),

and review the District Court’s injunction order for an abuse of discretion. Matter of

Packer Ave. Associates, 884 F.2d 745, 746 (3d Cir. 1989). We will affirm a dismissal for

failure to state a claim if we can “say with assurance that under the allegations of the pro

se complaint, which we hold to less stringent standards than formal pleadings drafted by

lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.’” McDowell v. Delaware State Police, 88

                                               4
F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). The

Tilburys raise a myriad of issues on appeal. However, because we have determined that

those issues are without any legal and/or factual merit, we dispose of them with little or

no discussion.

       Initially, we address the Tilburys’ argument that the District Court’s order of

dismissal must be reversed because the court improperly converted defendants’ motions

to dismiss to motions for summary judgment by examining evidence outside the

complaint. When reviewing a complaint under Fed. R. Civ. P. 12(b)(6), a court may

examine the facts as alleged in the pleadings as well as “matters of public record, orders,

exhibits attached to the complaint, and items appearing in the record of the case.” See

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir. 1994)

(citations omitted). Additionally, “[a]lthough a District Court may not consider matters

extraneous to the pleadings, ‘a document integral to or explicitly relied upon in the

complaint may be considered without converting the motion to dismiss into one for

summary judgment.’” U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.

2002), quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir.1997) (internal quotations omitted). It does not appear that the District Court

examined any evidence not properly before the court on a motion to dismiss. Moreover,

even if such a conversion had occurred in the instant case, such error would arguably

have been harmless as the Tilburys’ responses indicate that they believed the defendants’

motions provided notice of the possibility of summary disposition and they certainly took

the opportunity to respond accordingly prior to the District Court’s entry of judgment.

See, e.g., Schering Corp. v. Food and Drug Admin., 51 F.3d 390, 400 (3d Cir. 1995);

                                             5
Hancock Industries v. Shaeffer, 811 F.2d 225, 228 (3d Cir.1987). We need not decide

this issue definitively, however, as the District Court explicitly concluded that it was not

converting defendants’ motions into ones for summary judgment, and we can find no

fault with that conclusion.

       With respect to the District Court’s decision to grant defendants’ motions to

dismiss, we will affirm the entry of judgment for essentially the same reasons set forth by

the District Court and do so with little discussion given the amount of judicial resources

already expended in reviewing the Tilburys’ claims. Briefly, the Entire Controversy

Doctrine – which “stems directly from the principles underlying the doctrine of res

judicata,” Prevratil v. Mohr, 678 A.2d 243, 246 (N.J. 1996), and is codified in New Jersey

Civil Practice Rule 4:30A – seeks to assure that all aspects of a legal dispute occur in a

single lawsuit. Olds v. Donnelly, 696 A.2d 633, 637 (N.J. 1997). Although the doctrine

no longer requires joinder of all parties in one lawsuit, parties must present all claims

arising out of a controversy. See Mitchell v. Procini, 752 A.2d 349, 352 (N.J. Super.

App. Div. 2000)(discussing evolution of the doctrine). To determine whether the doctrine

bars a second action, a court considers whether the claims raised arise from related facts

or the same transaction, whether application of the doctrine is fair and whether its

application would promote judicial economy. DiTrolio v. Antiles, 662 A.2d 494, 502-07

(N.J. 1995). The District Court’s opinion adequately discusses the application of these

principles to the Aames, Cenlar and FATICO defendants, and we need not repeat that

analysis here. See District Court’s Amended Opinion at 18-21. We would simply note

our agreement with the District Court’s determination that the claims raised in the

underlying complaint were either previously addressed in the state court proceedings, or

                                              6
necessarily arise from the same facts and transactions as the claims raised in the state

court action and, therefore, should have been joined in the state court complaint.

       To the extent that any of appellants’ claims can arguably be said to have survived

application of these preclusion principles with respect to any particular party, we agree

with the District Court’s general conclusion that the “entire complaint is without any legal

basis or justification and borders on paranoia.” Id. at 22. We likewise agree with the

various appellees’ contentions that dismissal was ultimately warranted because the

Tilburys’ complaint fails to state a claim for which relief can be granted, and that

affirmance of the District Court’s order of dismissal is therefore warranted. See Hi Tech

Trans, LLC v. New Jersey, 382 F.3d 295, 297 (3d Cir. 2004), citing Nicini v. Morra, 212

F.3d 798, 805 (3d Cir. 2000) (court of appeals may affirm for any reason supported by the

record). Appellants failed to assert any facts, other than mere conclusory allegations, that

could potentially support their RICO, conspiracy and/or fraud allegations. See Sedima,

S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); Lum v. Bank of America, 361 F.3d

217, 223-24 (3d Cir. 2004). Their TILA and RESPA claims are clearly time barred, see

15 U.S.C. § 1640(e) and 12 U.S.C. § 2614, and their attempt to create a new cause of

action under RESPA simply by corresponding with certain appellees and then challenging

the resultant responses which were based directly on the underlying state court litigation

is disingenuous at best. We have carefully considered appellants’ other allegations of

error and find them to be meritless.

              Finally, we are asked to review whether the District Court abused its

discretion in granting the defendants’ motions to bar the Tilburys from further filings

without leave of the court. In particular, the court enjoined the Tilburys, unless they are

                                              7
represented by a licensed attorney admitted to practice in the United States District Court

for the District of New Jersey, from filing against “the defendants named in the

underlying action, or any employee, agent, or attorney thereof” (a) any action within that

court, (b) any action or proceeding in any federal court, and (c) any further papers in any

pending or terminated case in that court without first obtaining leave of the District Court.

See Order entered December 13, 2005 at 2.

       An injunction is an extreme remedy, but we will affirm the grant of an injunction if

the enjoined litigant was given notice and opportunity to be heard, and the injunction is

narrowly tailored to fit the particular circumstances of the case. See Brow v. Farrelly,

994 F.2d 1037, 1038-39 (3d Cir. 1993); Matter of Packer Ave. Assocs., 884 F.2d 745,

747 (3d Cir. 1989). The Tilburys certainly had notice of the fact that the District Court

was considering the issuance of an injunction as well as the opportunity to respond.

Further, we agree with the District Court that this litigation must come to an end. The

Tilburys have burdened nearly every person even remotely connected to their underlying

suit, including several courts and numerous judges. We read the District Court’s order to

bar only the filing of pro se actions relating to this matter without first obtaining leave of

the court. All other actions simply require due notice to the court. The order further

provides sufficient safeguards to ensure that the Tilburys’ access to the courts is not

permanently and unnecessarily restricted. We embrace those safeguards, but we modify

the injunction to require representation by a licensed attorney. We will not require that

the attorney also be licensed to practice in the United States District Court for the District

of New Jersey. Accordingly, we hold that the District Court did not abuse its discretion.

       For all of the foregoing reasons, we will affirm the judgment of the District Court.

                                               8
Appellees’ motion to file a supplemental appendix is granted as all of the documents

contained therein were filed as part of the record in the District Court. Appellants’

motion to strike appellees’ briefs and supplemental appendix is denied, as is their “motion

for order to have the Burlington County Superior Court, September 21, 2004 summary

judgment motion court hearing recording tested by a certified forensic electronics analyst

for tampering.” We will also deny appellants’ motion seeking the appointment of

counsel. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).




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