Anthony Tharpe v. Nationstar Mortgage LLC

Filing

Opinion issued by court as to Appellant Anthony Tharpe. Decision: Affirmed. 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: 17-10851

Date Filed: 12/04/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10851
Non-Argument Calendar
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D.C. Docket No. 2:13-cv-14379-DLG

ANTHONY THARPE,
Plaintiff-Appellant,
versus
NATIONSTAR MORTGAGE LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 4, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:

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Anthony Tharpe, proceeding pro se, appeals the district court’s grant of
summary judgment to Nationstar Mortgage, LLC on his Fair Debt Collection
Practices Act claim. Tharpe filed this federal action in September 2013, claiming
that Nationstar violated the FDCPA through a series of communications about an
allegedly fraudulent mortgage bearing his name. He contends that the district court
erred in ruling that a Florida state court decision bars his federal claim based on res
judicata and that the district court abused its discretion in denying his motion for
reconsideration.
Tharpe filed a complaint in Florida state court in February 2015 alleging that
Nationstar and two of its attorneys violated the FDCPA through a series of
communications about the same allegedly fraudulent mortgage. The state court
ruled that Tharpe’s complaint failed to state an FDCPA claim because Nationstar’s
prosecution of an allegedly fraudulent foreclosure was not a debt collection activity
under the statute. Tharpe appealed that ruling to Florida’s Fourth District Court of
Appeal, which affirmed the lower court in a per curiam decision issued in June
2016. The mandate issued that same month.
After the Florida appellate court affirmed the lower court’s ruling,
Nationstar filed a motion for summary judgment in this federal action, arguing that
res judicata barred Tharpe’s federal FDCPA claim. The district court ruled that
Nationstar satisfied the five requirements for res judicata under Florida law and
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granted summary judgment in favor of Nationstar. Tharpe filed a motion for
reconsideration, which the district court denied. This is Tharpe’s appeal.
We review de novo the district court’s res judicata ruling. Kizzire v. Baptist
Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006). “When we are asked to
give res judicata effect to a state court judgment, we must apply the res judicata
principles of the law of the state whose decision is set up as a bar to further
litigation.” Id. (quotation marks and brackets omitted). Under Florida law, res
judicata “applies when four identities are present: (1) identity of the thing sued
for; (2) identity of the cause of action; (3) identity of persons and parties to the
action; and (4) identity of the quality of the persons for or against whom the claim
is made.” Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004). There must also be a
ruling “on the merits for an issue to have truly been decided and thus preclude the
consideration of an issue on the basis of res judicata.” Id. (quotation marks
omitted).
All of those requirements are satisfied in this case. To begin with, there is
“identity of the thing sued for” because Tharpe seeks identical relief in both
actions: damages under the FDCPA, punitive damages, and an order directing the
clerk of court and all relevant governmental agencies or municipalities to remove
the allegedly fraudulent mortgage from the public record. See AMEC Civil, LLC
v. State, Dep’t of Transp., 41 So. 3d 235, 242 (Fla. 1st DCA 2010) (concluding
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that the “[i]dentity of the thing sued for” existed where the plaintiff sought
damages in both actions) (quotation marks omitted). The causes of action are also
identical because his federal and state actions both allege an FDCPA violation
based on the same foreclosure and Nationstar’s communications concerning the
same allegedly fraudulent mortgage. See Pumo v. Pumo, 405 So. 2d 224, 226 (Fla.
3rd DCA 1981) (stating that the second requirement is satisfied where the “facts
essential to the maintenance” of the actions are similar). 1
The third and fourth requirements are also easily satisfied. The identity of
the parties exists because Tharpe sued Nationstar in the state action and federal
action. See Prall v. Prall, 50 So. 867, 870 (Fla. 1909) (stating that res judicata
applies where the second suit is “between the same parties as the first [suit]”). And
the fourth identity is easily satisfied because Tharpe had the same “incentive to
adequately litigate” his state court claim as his federal claim. Stockton v.
Lansiquot, 838 F.2d 1545, 1546–47 (11th Cir. 1988) (stating that the fourth

1

Tharpe argues that the causes of action are not the same because only the action that was
filed first can serve as the basis for res judicata, which would mean that the district court erred in
giving res judicata effect to the state court action, which was filed two years after his federal
action. But that argument ignores how he filed his operative amended complaint in the federal
action in April 2015, two months after he filed his state court action. Furthermore, he cites no
authority for that argument and several other arguments he makes, which means that those
arguments are deemed abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“[A]n appellant’s brief must include an argument containing appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies, and . . . simply stating that an issue exists, without further argument or
discussion, constitutes abandonment of that issue and precludes our considering the issue on
appeal.”) (quotation marks omitted); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008) (noting that abandonment rules apply to pro se briefs).
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requirement was satisfied where “the same plaintiff sued the same defendant[] for
relief on substantially the same claim, arising from the same circumstances, and
raised the same underlying issues in the federal proceeding as he had previously
raised in the state proceeding”).
Finally, the Florida decision dismissing Tharpe’s state court complaint was a
ruling on the merits. Smith v. St. Vil, 714 So. 2d 603, 605 (Fla. 4th DCA 1998)
(“An order finally dismissing a complaint for failure to state a cause of action is an
adjudication on the merits.”). Tharpe’s argument that no merits decision exists
because he has a further right to appeal is meritless. Capital Assurance Co. v.
Margolis, 726 So. 2d 376, 376 (Fla. 3rd DCA 1999) (“Mere pendency of an appeal
does not diminish the effect of [a] dismissal.”). 2
The district court properly concluded that res judicata bars Tharpe’s federal
FDCPA claim. Furthermore, the district court did not abuse its discretion in
denying Tharpe’s motion for reconsideration, which simply rehashed arguments he
made in opposition to Nationstar’s summary judgment motion. See Richardson v.
Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (“A motion for reconsideration cannot

2

Tharpe makes several arguments that the district court’s res judicata ruling was
erroneous based on our earlier holding that the district court erred in dismissing his complaint for
failure to state a plausible claim for relief. Tharpe v. Nationstar Mortg. LLC, 632 F. App’x 586,
587 (11th Cir. 2016) (unpublished). For instance, he argues that our decision precluded the
Florida court from dismissing his state court complaint on the ground that a foreclosure action is
not a debt collection under the FDCPA, but our decision did not address that issue. See id. at
588. He also argues that the district court disobeyed our mandate by granting summary
judgment on the basis of res judicata, but we never addressed res judicata in our decision.
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be used to relitigate old matters, raise argument or present evidence that could have
been raised prior to the entry of judgment.”) (quotation marks omitted).
AFFIRMED.

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