Vorisek v . Arkley, I I , et a l . 06-CV-224-SM 10/16/06 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kurt W . Vorisek and Fritz E . Vorisek, Individually and as Beneficiaries of the Jean E . Vorisek Family Trust; and Jean E . Allan, Individually and as Trustee of the Jean E . Vorisek Family Trust, Plaintiffs,

v. Civil N o . 06-cv-224-SM Opinion N o .

Robin A . Arkley, I I ; SN Servicing Corporation (f/k/a Security National Service Corporation); Ingomar, L P ; SNGC, LLC; Security National Funding; Ingo, L P ; Lawyers Recovery and Litigation Services, Inc.; Regional Financial Services, LLC; Regional Financial Services, L P ; Christiana Bank and Trust; John Doe; and Mary Roe Defendants

O R D E R

Although cast as a vague federal claim asserting unfair

competition and civil racketeering, in reality pro se plaintiffs’

complaint seeks injunctive relief necessary to block a

foreclosure sale of property owned by the Jean E . Vorisek Family

Trust.1 The primary difficulty plaintiffs face is that final

1 The complaint makes wide-ranging allegations of fraud, corruption, attorney conflicts of interest, and breaches of the duty of loyalty, etc., against a host of individuals and firms, judgments were entered in earlier state court proceedings that

effectively preclude their claims in this forum.

Background

Plaintiff, Jean E . Allan (“Allan”) (formerly Jean E . Vorisek

and Jean E . Quinn) established the Jean E . Vorisek Family Trust,

which she controlled (and still controls) as the sole trustee.

The trust held title to real property and also owned a business,

Business Assets Management, Inc. (“BAM”), which in turn acquired

all the common stock of Senter Cove Development Company, Inc.

(“Senter”). In 1989, BankEast (now defunct) sued BAM, Senter,

and Allan for failure to repay amounts advanced under a line of

credit extended by the bank — a line that Allan personally

guaranteed. That suit was resolved by a Stipulation and

Settlement Agreement between BankEast and Allan, BAM, and Senter,

dated October 1 2 , 1989, which was approved and adopted by the New

Hampshire Superior Court. BankEast v . Senter Cove Development

Co., Inc.; Business Assets Management, Inc.; and Jean E . Quinn,

but none of the objects of those claims are named as defendants. The named defendants are persons or entities that own, or once owned, an interest in a state consent judgment for a liquidated amount entered in favor of BankEast, formerly a New Hampshire bank, and against Plaintiff Jean E . Allan and two companies she owned, which judgment was secured by a mortgage deed to real property owned by the Jean E . Vorisek Family Trust, a trust created and controlled by plaintiff Allan.

2 Individually, N o . 89-M-2809, New Hampshire Superior Court

(Hillsborough County).

The Settlement Agreement provided, in part, as follows

(emphasis supplied):

1 . All of the Defendants hereby knowledge (sic) and admit that as of October 5 , 1989, they are jointly and severally liable to Plaintiff to the sum of $288,550.48. Accordingly, the Defendants hereby consent to the entry of a judgment in favor of the Plaintiff against the Defendants in said amount which includes all interest, costs, fees and expenses through and including October 5 , 1989.

2 . The Defendants likewise admit and agree that said judgment will continue to accrue interest in favor of the Plaintiff at the rate of $91.45 per day commencing on October 6, 1989, and accruing on each successive day thereafter until the judgment is satisfied.

3 . All three Defendants hereby agree that within three days after execution of this agreement that they will deliver to the Plaintiff statutory form mortgages; upon any and all real estate which they own, wherever located which shall grant to the Plaintiff the statutory power of sale exercisable by the Plaintiff in the event the Defendants, jointly or severally, fail to satisfy all of their obligations and undertakings as set forth herein.

Within a week, Allan, as trustee of the Vorisek Family Trust,

dutifully executed a mortgage deed in favor of BankEast “to

secure the payment of all sums due under a judgment in favor of

3 the Mortgagee [BankEast] dated October 1 2 , 1989 in BankEast v s .

Senter Cove Development Company, Inc., Business Assets

Management, Inc. and Jean E . Quinn, Hillsborough County Superior

Court, Docket N o . 89-M-2809, in the amount of Two Hundred Eighty-

Eight Thousand Five Hundred Fifty Dollars and Forty-Eight Cents

($288,550.48) plus interest of Ninety-One Dollars and Forty-Five

Cents ($91.45) per day beginning October 3 , 1989 and continuing

until the date of payment thereunder . . . .” The mortgage, with

statutory power of sale, applied to property owned by the Vorisek

Family Trust located in Center Harbor, New Hampshire. The

executed deed was delivered and recorded in the land records of

Belknap County.

The Settlement Agreement obligated BankEast to forebear from

taking any action to enforce the judgment or the mortgage for a

period of ninety days, until January 3 , 1990. If the defendants

did not pay the judgment amount by 5:00 p.m. on January 3 , 1990,

then BankEast was free to exercise its rights under the mortgage.

The judgment debt was not paid (and remains unpaid).

BankEast failed shortly thereafter and the Federal Deposit

Insurance Corporation (“FDIC”) took over as receiver. The bank’s

assets were marshaled and distributed or sold, and its interests

4 in the line of credit note, the 1989 judgment, and the Center

Harbor mortgage at issue here passed through a number of owners

over the years.

In 1997, Allan brought a quiet title petition in the New

Hampshire Superior Court against the FDIC’s agent, Bank One New

Hampshire, seeking to challenge the mortgage deed’s

enforceability. Jean E . Quinn, et a l . v . Bank One New Hampshire,

et a l . , N o . 97-E-0202, New Hampshire Superior Court (Belknap

County). That case was dismissed, however, after the Superior

Court concluded that it was without jurisdiction over claims

against the FDIC.

In 2001, Allan brought another quiet title petition in state

court, this time against Regional Financial Services, a successor

to BankEast’s interests in the line of credit note, the 1989

judgment, and the Center Harbor Mortgage securing payment of that

judgment. In that case, the Superior Court determined that

Allan’s claims of pre-settlement (and pre-judgment) fraud by

BankEast (and perhaps others) were barred by the doctrines of res

judicata and collateral estoppel. Specifically, the court

concluded that Allan and the other defendants in BankEast’s 1989

5 collection suit could and should have raised as defenses the very

claims she was asserting in the quiet title petition:

The petitioners also claim that if the trial judge who approved the stipulation in 1989 had been made aware that BankEast was allegedly acting fraudulently, he would not have so approved the agreement. However, it is apparent from the petitioner’s pleadings that they were aware of this alleged fraud at that time. The issue in the instant litigation is identical to the first action. Moreover it was resolved finally on the merits. As BankEast’s successor in interest, the intervenor is in privity with BankEast. Moreover petitioners had a full and fair opportunity to litigate the matter at the time and chose not t o . Instead, they agreed to the above referenced settlement stipulation. The petitioners could have raised their concerns regarding the validity of the agreement at that time and are precluded from relitigation by virtue of their failure to do s o .

The quiet title petition was dismissed. Jean Quinn, as Trustee

of the Jean E . Vorisek Family Trust, and as Sole Stockholder of

Business Assets Management, Inc. and its Wholly Owned Subsidiary,

Senter Cove Development Co., Inc. v . RFS, Inc., D/B/A Regional

Financial Services, N o . 01-E-0015, New Hampshire Superior Court

(Belknap County), Order of October 2 3 , 2002 (Smukler, J . ) . Allan

appealed to the New Hampshire Supreme Court, which affirmed the

trial court’s decision. Jean E . Quinn, as Trustee et a l . v . RFS,

Inc., N o . 2002-0757, New Hampshire Supreme Court, Order dated

January 3 1 , 2003.

6 In 2005, SN Servicing Corporation brought suit against

Allan, individually and as Trustee of the Vorisek Family Trust,

seeking a decree permitting the sale of the Center Harbor

property pursuant to the foreclosure provisions of the mortgage

deed. SN Servicing was acting as agent of Ingomar, L P , the

latest successor in interest to BankEast’s rights. SN Servicing

Corp. as Agent for Ingomar, LP v . Jean Elizabeth Allan,

individually and as Trustee, N o . 05-E-0078, New Hampshire

Superior Court (Belknap County). The state court restricted

Allan’s defenses in that case, given Judge Smukler’s earlier

ruling in 2003, and held that Ingomar was the exclusive owner and

holder of the mortgage on the Center Harbor property, that the

1989 judgment secured by the mortgage had not been paid, and that

Ingomar was entitled to a decree for sale pursuant to N.H. Rev.

Stat. Ann. ch. 499:22.

Order dated September 2 6 , 2005

(McHugh, J . ) .

Allan again appealed, and the New Hampshire Supreme Court

again summarily affirmed the trial court’s decision. SN

Servicing Corporation as Agent for Ingomar, LP v . Jean Elizabeth

Allan, Individually and as Trustee, Case N o . 2005-0814, New

Hampshire Supreme Court, Order dated April 2 1 , 2006.

7 Discussion

The pro se pleadings in this case are understandably

narrative in tone and tell a long and complicated story, often

straying well beyond the issue at hand — enforceability of the

mortgage deed. But, when all is said and done, plaintiffs’

claims against the named defendants amount to a request that this

court enjoin the foreclosure sale of the Center Harbor property

under the mortgage deed given to secure BankEast’s 1989 judgment,

even though the state courts have finally determined that the

sale may go forward. Plaintiffs offer theories of fraud and

corruption underlying the initial extension of credit by BankEast

in an effort to attack the consent judgment, but the state court

held that those theories were available to plaintiffs in the

initial collection suit in 1989, and, having not been asserted,

were deemed barred in the later litigation.

Although the Supreme Court recently limited the scope of the

Rooker-Feldman doctrine in Exxon Mobil Corp. v . Saudi Basic

Indus. Corp.,

(2005), still, this case falls

squarely within that now limited reach. Under the Rooker-Feldman

doctrine, federal district courts lack jurisdiction over “federal

complaints . . . [that] essentially invite[] federal courts of

first instance to review and reverse unfavorable state-court

8 judgments.” Federacion de Maestros de Puerto Rico v . Junta de

Relaciones del Trabajo de Puerto Rico,

7 , 20 (1st Cir.

2005) (citing Exxon Mobil,

; D.C. Court of

Appeals v . Feldman,

(1983); Rooker v . Fidelity Trust

Co.,

(1923)).

After Exxon Mobil, the doctrine “now applies only in the

‘limited circumstances’ where ‘the losing party in state court

filed suit in federal court after the state proceedings ended,

complaining of an injury caused by the state-court judgment.’”

Federacion de Maestros,

(citations omitted).

When “the highest state court in which review is available has

affirmed the judgment below and nothing is left to be resolved,

then without a doubt the state proceedings have ‘ended.’”

.

Plaintiffs filed this federal suit on June 1 6 , 2006, years

after the New Hampshire Superior Court entered the consent

judgment establishing the debt owed BankEast and the time to

appeal that judgment expired, well after the Superior Court

entered judgment dismissing Allan’s quiet title petition and the

New Hampshire Supreme Court affirmed that judgment, and, finally,

well after the New Hampshire Supreme Court affirmed the Superior

9 Court’s issuance of a decree authorizing sale of the Center

Harbor property pursuant to the mortgage deed given by Allan, as

Trustee of the trust she controlled, to secure the 1989 judgment

in favor of BankEast. S o , this suit was filed after state

proceedings “ended,” meeting the test established in Exxon Mobil.

Besides the timing issue, deciding whether Rooker-Feldman

bars plaintiffs’ federal suit also requires the court to

“determine what the state court held and whether the relief that

the plaintiffs requested in their federal action would void the

state court’s decision or would require [the court] to determine

that the decision was wrong.” Hill v . Town of Conway,

3 , 39 (1st Cir. 1999). Here that is rather apparent. The state

courts have unmistakeably held, rightly or wrongly, that

BankEast’s successor in interest is authorized under state law to

exercise its right of sale under the mortgage deed securing the

1989 consent judgment against Allan, and so may proceed to

conduct a foreclosure sale of the Center Harbor property.

The relief plaintiffs seek in this federal suit is also

fairly clear. They ask this court to enjoin the very sale of the

Center Harbor property that the state courts have authorized,

which relief would necessarily require this court to void the

10 contrary state court decisions or determine that they were wrong.

That is precisely what Rooker-Feldman precludes; indeed this

court is without subject matter jurisdiction to review a final

state court judgment. See Maymo-Melendez v . Alvarez-Ramirez,

7 , 33 n.7 (1st Cir. 2004); Mandel v . Town of Orleans,

6 7 , 271 (1st Cir. 2003). With a few exceptions not

applicable here, only the United States Supreme Court is

empowered to review a state court’s final judgment. Exxon Mobil,

125 S . C t . at 1526.

Conclusion

As the court lacks subject matter jurisdiction, under the

Rooker-Feldman doctrine, to review, modify or void the state

courts’ judgments, and given that plaintiffs’ suit seeks that

very relief, the defendants’ motion to dismiss (document n o . 11)

is hereby granted. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

11 SO ORDERED.

_ _ _ _ _ _ _ _ _ _ _^ 1 _ Steven J . McAuliffe :hief Judge

October 1 6 , 2006

cc: Kurt W . Vorisek, pro se Fritz E . Vorisek, pro se Jean E . Allan, pro se Mark C . Rouvalis, Esq. Michael J. Kenison, Esq.

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