The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge
Plaintiff Henry Ortlieb brings this action against Defendant
Jefferson Bank and its successor, Defendant Hudson United Bank
(collectively, the "Bank") for their alleged failure to enter
satisfaction of three mortgages given to Defendant on two of Plaintiff s
real property holdings one located in Pennsylvania and the other
in New Jersey. As such, Plaintiff brings claims under both the
Pennsylvania Mortgage Satisfaction statute, 21 P. S. §§ 681-682, and
the New Jersey common law for slander of title. Now before this court are
the Plaintiff's Motion for Partial Summary Judgment, Plaintiff's
Supplemental Motion for Summary Judgment, and Defendant Hudson United
Bank's Motion for Summary Judgment.*fn1 Because Plaintiff's claims are
barred by both the doctrine of judicial estoppel and the applicable
statutes of limitations, the Defendant's Motion is granted and the
I. BACKGROUND On April 29, 1999, Plaintiff borrowed $550,000 from Jefferson Bank. As
security for this loan, Plaintiff took out two $550,000 mortgages-one on
his property in Fort Washington, Pennsylvania, and the other on his
ocean-front house in Ocean City, New Jersey. Approximately one year
later, on May 15, 2000, Plaintiff borrowed another $40,000, this time
from Hudson United Bank, which had acquired Jefferson in the interim. As
security for this second loan, Plaintiff gave Hudson United a $40,000
mortgage on the Ocean City, New Jersey house. By September 28, 2000,
Plaintiff had repaid both loans in full.
For the next two months, his obligations with respect to Defendant
having been fulfilled, Plaintiff took steps to ensure that the Bank
complied with its statutory duty to enter satisfaction of the repaid
mortgages. First, some time in October, 2000, within a few weeks of
repayment, Plaintiff spoke with Thomas Kelly, one of Hudson United's
officers, and requested that Mr. Kelly provide satisfactions of the
mortgages on both the Pennsylvania and New Jersey properties. The Bank
failed to comply with these requests. Then, on November 28, 2000,
Plaintiff's attorney at the time, Warren Trainor, wrote to Robert Seiger,
the Bank's counsel in connection with the prior loans to Plaintiff, to
inquire into whether the Pennsylvania mortgage had been satisfied. The
November 28 letter marked the last time that Plaintiff, or any of his
representatives, contacted the Bank regarding satisfactions until 2002.
Plaintiff's first contact with Defendant in 2002 came on January 22,
when Maxine Werbit, identifying herself as employed by a title insurance
company, left a voice-mail on behalf of Plaintiff for Rose Diaz,
Defendant's Vice President of Loan Operations, requesting satisfaction of
Plaintiff's New Jersey and Pennsylvania mortgages. A few weeks later, the
Bank received a letter dated February 18, 2002 from Plaintiff's new
attorney, Dennis Nolan. Therein, Mr. Nolan cited the Pennsylvania Mortgage Satisfaction statute, 21 P.S, § 682, and
threatened to sue Defendant if it did not prepare a satisfaction piece
for the Pennsylvania mortgage and send it to him within ten days. A copy
of this letter was furnished to Plaintiff, who also received oral
confirmation from Mr. Nolan that the attorney had indeed threatened
litigation against the Bank.
In response to the February 18 letter, Barbara Montgomery, a file room
employee at Hudson United, called Mr. Nolan's office to request the title
information necessary to prepare the satisfaction; the attorney's office
faxed the requested information to the Bank on February 27. Upon
receiving this information, Hudson United promptly prepared and executed
a release of the Pennsylvania mortgage, which it sent via Federal Express
to Mr. Nolan's office on March 1. The delivery arrived at Mr. Nolan's
office on March 4 and was signed for there by Theresa Marcone, Mr.
Approximately two months later, on or about April 30, 2002, Mr. Nolan's
office called Defendant to inquire into satisfaction of Plaintiff s
mortgages on the New Jersey property. On May 4, the Bank received a fax
on Mr. Nolan's stationary containing the title information regarding the
$550,000 mortgage on the New Jersey house. As requested, the Bank then
prepared and executed a release for that mortgage, which it mailed to Mr.
Nolan's office on May 7.
On May 28, 2002, Mr. Nolan passed away and was replaced as Plaintiff's
counsel by Frank Marcone. Although Mr. Marcone made diligent efforts to
recover the Ortlieb files, he was unable to do so. He did, however,
discover that-despite the Bank's having executed and sent to Mr. Nolan
the releases for both the Pennsylvania mortgage and the $550,000 New
Jersey mortgage-neither release was ever filed by Plaintiff or any of his
representatives. As such, a title company requested confirmation of
satisfaction of the Pennsylvania mortgage on August 1, 2002, while Mr. Marcone himself requested a satisfaction piece for both New Jersey
mortgages on September 27, 2002. Defendant complied with those requests
on August 6 and October 1, respectively, and, thereafter, Mr. Marcone
filed the satisfaction pieces with the appropriate authorities.
Before filing his Complaint in this court on July 18, 2003-some time
between July 2002 and January 2003-Plaintiff contacted Kirk Wycoff, a
banking executive with Progress Bank, in an attempt to again use his
properties as collateral in order to obtain personal financing. Mr.
Wycoff, however, told Plaintiff that he could do nothing for him as long
as the Hudson United mortgages were not marked as satisfied. In addition,
he explained to Plaintiff that, based on Mr. Wycoff's personal experience
at Progress, he believed that Plaintiff might have a cause of action
against Hudson United for the Bank's failure to satisfy the three
mortgages in a timely manner.
Although Plaintiff had satisfied his obligations to Hudson United by
September 28, 2000, he remained indebted to other creditors throughout
the course of his dealings with Defendant. In particular, Washington
Mutual, which owned mortgages totaling in excess of $1 million on both
the Pennsylvania and New Jersey properties, were pursuing foreclosures
against both properties. Plaintiff also owed $250,000 to DSB, LLC, which
had purchased the second lien position on the Pennsylvania property. In
addition, Plaintiff owed $156,000 to GE Capital, and he had over $100,000
in unpaid state and federal taxes.
As a result of these debts, Plaintiff filed personal bankruptcy
petitions with this court's bankruptcy division on April 24, 2001,
September 21, 2001, November 16, 2001, February 26, 2002, and April 24,
2003. In three of those five proceedings-the first, fourth, and
fifth-Plaintiff filed the requisite schedules listing his assets but declined to
mention his possible claim against Defendant in the instant
Throughout the ongoing bankruptcy process, attorneys for Plaintiff
attempted to settle his debts on the grounds that he could not afford to
pay his creditors the amounts he owed in full. For example, on February
27, 2002, Mr. Nolan wrote to counsel for DSB and offered to settle
Plaintiff's $250,000 debt for $125,000. He explained that the first lien
holder on the Pennsylvania property was pursuing foreclosure and that,
unless a proposed sale of the house to Mr. Ortlieb's wife financed by a
mortgage in her name was approved, there would be no alternative other
than to go through Chapter 11 and abandon the property. In addition, on
September 18, 2002, Mr. Marcone faxed to counsel for Washington Mutual a
letter containing an offer to settle Plaintiff's debt with that
institution. Therein, Mr. Marcone explained that Plaintiff could not
afford to pay the amount due because he was indebted to a host of
additional creditors. The attorney went on to list Plaintiff's creditors
and the amount owed to each, including a $550,000 debt to Jefferson Bank.
Plaintiff, however, had paid off his debt to the Bank in full on
September 28, 2000.
This court finds that summary judgment must be granted in favor of
Defendant because Plaintiff's claims are barred by the equitable doctrine
of judicial estoppel. Even absent judicial estoppel, all of Plaintiff's
claims based on the Pennsylvania mortgage are either untimely or fail as
a matter of law, while his claims based on the New Jersey mortgages are
likewise time-barred. A. Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). At the summary judgment stage, the court does not weigh the
evidence and determine the truth of the matter. Rather, it determines
whether or not there is a genuine issue for trial Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making this
determination, all of the facts must be viewed in the light most
favorable to, and all reasonable inferences must be drawn in favor of,
the non-moving party. Id. at 256.
The moving party has the burden of showing there are no genuine issues
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 639 (3d
Cir. 1996). In response, the non-moving party must adduce more than a
mere scintilla of evidence in its favor and cannot simply reassert
factually unsupported allegations contained in its pleadings.
Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 325;
Williams v. Borough of West Chester. 891 F.2d 458, 460 (3d Cir.
1989). Rather, there must be evidence on which a jury could reasonably
find for the nonmovant. Liberty Lobby. 477 U.S. at 252.
"Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at
trial." Celotex. 477 U.S. at 322.
Defendant's primary contention is that judicial estoppel acts as a bar
to Plaintiff's claims because he knowingly and misleadingly failed to
disclose the existence of those claims on the bankruptcy schedules he filed with this court's bankruptcy
division between 2001 and 2003. This court agrees. The circumstances
surrounding Plaintiff's knowing, bad faith failure to disclose his
contingent claims against the Bank throughout the bankruptcy process,
coupled with his ...