McCall et al v. Household Finance Corporation of Alabama et al
OPINION. An appropriate judgment will be entered. Signed by Honorable Judge Myron H. Thompson on 7/29/2016. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ETHEL L. McCALL and
GEORGE R. McCALL,
ETHEL L. McCALL and
GEORGE R. McCALL,
CORPORATION OF ALABAMA and )
HSBC MORTGAGE SERVICES,
CIVIL ACTION NO.
In this adversary proceeding, plaintiffs Ethel L.
and George R. McCall have objected to the proof of
claim and the notice of post-petition mortgage fees,
Services, Inc., in the underlying bankruptcy proceeding
violated Alabama’s Deceptive Trade Practice Act, 1975
Code of Ala. § 8-19-5 (V).
Defendants have filed a
motion to dismiss counts II through V of the adversary
proceeding pursuant to Fed. R. Bankr. P. 7012(b)(6),
arguing that these claims are barred by res judicata
due to a prior decision in the Circuit Court of Autauga
recommendation of the United States Bankruptcy Judge
that the motion be granted.
Plaintiffs have objected
to this recommendation, but only on a single ground:
they contend that the state court judgment dismissing
that action as time-barred was not a resolution on the
Bankruptcy Judge’s recommendation.
cited a single case, Romar Development Co. v. Gulf View
Management Corp., 644 So. 2d 462 (Ala. 1994), but this
case reached no holding regarding the question at hand;
were subject to the statute of limitations.
“expiration of a statute of limitation does not resolve
the underlying merits of the consequently barred claim
in favor of either party; it merely cuts off the remedy
of the party who has slept on his rights”--is not only
dicta, it is dicta appearing in a lengthy quotation
regarding the application of statutes of limitations to
other federal courts in Alabama have consistently held
that a dismissal based on the statute of limitations by
an Alabama court is a final judgment on the merits.
See Cagle v. Rubley, 2014 WL 5339314, at *3 (M.D. Ala.
Oct. 20, 2014) (Coody, M.J.); Mykins v. Ala. Dep’t of
Human Res., 2012 WL 6213300, at *1 (S.D. Ala. Dec. 12,
2012) (Steele, J.); see also Ala. R. Civ. P. 41(b)
(“Involuntary Dismissal: Effect Thereof.
specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction, for improper venue,
or for failure to join a party under Rule 19, operates
as an adjudication on the merits.”).
objection will therefore be overruled.
After an independent and de novo review
record and of the portion of the bankruptcy judge’s
recommendation to which an objection has been raised,
the court concludes that the recommendation should be
See Messer v. Peykar Intern. Co., Inc., 510
B.R. 31, 38 (S.D.N.Y. 2014) (Sweet, J.) (“Pursuant to
[only] make a de novo review ... of any portion of the
bankruptcy judge’s findings of fact or conclusion[s] of
law to which specific written objection has been made
in accordance with this rule.’” (alteration in original
and emphasis omitted); cf. Thomas v. Arn, 474 U.S. 140,
148-153 (1985) (explaining that neither the text nor
the history of the provision of the Federal Magistrates
Act parallel to Bankruptcy Rule 9033(d), requiring de
which specific objections have been made, “require[s]
An appropriate judgment will be entered.
DONE, this the 29th day of July, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?