Ken Joseph v. Nationstar Mortgage, LLC, et al

Filing

Opinion issued by court as to Appellant Ken Joseph. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11383

Date Filed: 04/28/2016

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11383
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-00596-WBH

KEN JOSEPH,
Plaintiff-Appellant,
versus
NATIONSTAR MORTGAGE, LLC,
MCCALLA RAYMER, LLC,
ALBERTELLI LAW,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 28, 2016)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 15-11383

Date Filed: 04/28/2016

Page: 2 of 3

This is the second lawsuit Ken Joseph has filed in an attempt to stave off a
non-judicial foreclosure. The first case was brought pro se against Nationstar
Mortgage, LLC, U.S. Bank National Association and McCurdy Candler. Joseph v.
Nationstar Mortgage, LLC, et al., No. 1:13-cv-4122 (N.D. Ga.) (“Joseph I”).
Adopting the Magistrate Judge’s recommendation, the District Court dismissed the
Real Estate Settlement Procedures Act and Fair Debt Collection Practices Act
(FDCPA) claims against Nationwide without prejudice1 and allowed the Truth in
Lending Act claim against U.S. Bank and the FDCPA claim against McCurdy
Candler to proceed. Order, February 25, 2014.2
On March 2, 2015, Joseph, proceeding pro se, brought the present action
against Nationstar, McCalla Raymer, LLC, and Albertelli Law, asserting claims
under the FDCPA and the Fair Credit Reporting Act. The District Court granted
Joseph’s application to proceed in forma pauperis and pursuant to 28 U.S.C. §
1915(e) dismissed the claims with prejudice on the ground of res judicata. Joseph
appeals, arguing that McCalla Raymer and Albertelli Law were not parties in
Joseph I, and thus his claims against them are not barred by res judicata. And the
claims against Nationstar were dismissed without prejudice, meaning that he could
bring suit on them again. We agree.
1

The claims were brought under the Real Estate Settlement Procedures Act and Fair
Debt Collection Practices Act
2
The District Court subsequently entered judgment against Joseph on the claims against
those two defendants.
2

Case: 15-11383

Date Filed: 04/28/2016

Page: 3 of 3

For res judicata to apply, there must have been: (1) a final judgment on the
merits; (2) rendered by a court of competent jurisdiction; (3) between the identical
parties, or their privities; and (4) the causes of action involved in both cases were
the same. Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir.
2010). McCalla Raymer and Albertelli Law were neither parties nor privy to
parties in Joseph I. The claims against Nationwide could not be barred by res
judicata because they were dismissed without prejudice.
The judgment of the District Court is vacated and the case is remanded for
further proceedings.
VACATED and REMANDED. 3

3

Nationwide argues that the dismissal of Joseph’s claims was warranted because his
complaint is a shotgun pleading. Appellees Br. at 8-9 (citing Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 979 (11th Cir. 2008)). The complaint is a shotgun pleading, but we do
not consider Nationwide’s argument because it was not presented to the District Court.
3