Echeverria et al v. Bank of America, N.A. et al

Filing 18

ORDER granting 7 Motion to Dismiss; denying as moot 6 Motion to Strike; denying as moot 8 Motion to Remand; denying as moot 17 Motion to Amend/Correct. Signed by Judge John Antoon II on 11/6/2012. (BLA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ABDIEL ECHEVERRIA and ISABEL
SANTAMARIA,
Plaintiffs,
v.

Case No: 6:12-cv-1360-Orl-28KRS

BANK OF AMERICA, N.A., BAC
HOME LOANS SERVICING, L.P.,
TAYLOR, BEAN & WHITAKER
MORTGAGE CORP., and
MERSCORP, INC.,

Defendants.
___________________________________/
ORDER
Plaintiffs, Abdiel Echeverria and Isabel Santamaria, have filed pro se an eightcount Complaint (Doc. 2) against Defendants stemming from conduct related to the
servicing and origination of Plaintiffs’ mortgage loan. Bank of America, N.A. (“BOA”),
BAC Home Loans Servicing, L.P. (“BAC”), and MERSCORP, Inc. (“MERS”) have
moved to dismiss Plaintiffs’ Complaint on the grounds that Plaintiffs have previously
filed in this Court an action based on allegations that are virtually identical in substance
to the allegations against them in this case. (Defs.’ Mot. Dismiss, Doc. 7, at 5-10).
“[R]es judicata . . . relieve[s] parties of the cost and vexation of multiple lawsuits,
conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s]
reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980). In the Eleventh
Circuit, “a claim is precluded by the judgment in a prior case when (1) the prior

judgment was rendered by a court of competent jurisdiction; (2) the judgment was final
and on the merits; (3) both cases involve the same parties or those in privity with them;
and (4) ‘both cases . . . involve the same causes of action.’”

Borrero v. United

Healthcare of N.Y., Inc., 610 F.3d 1296, 1306 (11th Cir. 2010) (quoting In re Piper
Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)).

“Two cases are generally

considered to involve the same cause of action if the latter case ‘arises out of the same
nucleus of operative fact, or is based upon the same factual predicate,’ as the former
one.” Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375-76 (11th Cir. 2011) (quoting
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999)). “‘Res judicata
acts as a bar not only to the precise legal theory presented in the previous litigation, but
to all legal theories and claims arising out of the same operative nucleus of fact.’” Id. at
1376 (quoting Pleming v. Universal–Rundle Corp., 142 F.3d 1354, 1356 (11th
Cir.1998)).
In Plaintiffs’ earlier case, Echeverria v. BAC Home Loans Servicing, LP
(“Echeverria I”), a court of competent jurisdiction rendered a final judgment on the
merits. See Civil Action No. 6:10-cv-1933-Orl-28DAB, 2012 WL 5227015 (M.D. Fla.
Oct. 22, 2012). BAC and BOA were defendants in Echeverria I, and although Plaintiffs
did not name MERS in that case, Plaintiffs’ allegations in both cases implicate MERS as
BOA’s agent in committing fraud. Id. The Court therefore finds MERS in privity with
BOA for purposes of res judicata. See, e.g., Citibank, N.A. v. Data Lease Fin. Corp.,
904 F.2d 1498, 1502 (11th Cir. 1990) (noting that “[m]ost other federal circuits have
concluded that employer-employee or principal-agent relationships may ground a claim
preclusion defense”). The allegations in this case against Defendants BOA, BAC, and

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MERS arise out of the same nucleus of operative fact as the allegations in Echeverria I.
See Echeverria I, 2012 WL 5227015. Accordingly, the doctrine of res judicata bars
Plaintiffs from bringing this case against BOA, BAC, and MERS. Plaintiffs’ Complaint is
therefore DISMISSED with prejudice as to BOA, BAC, and MERS.
As for Plaintiffs’ claims against Taylor, Bean, and Whitaker (“TB&W”), the Court
notes that TB&W filed for Chapter 11 bankruptcy in the United States Bankruptcy Court
for the Middle District of Florida on August 24, 2009. See In re Taylor, Bean & Whitaker
Mortg. Corp., Case No. 3:09-bk-07047-JAF (Bankr. M.D. Fla. filed August 24, 2009).
Defendants have brought to the Court’s attention that the Bankruptcy Court issued an
order enjoining claims against TB&W, (Opp. Pls.’ Mot. Remand ¶ 3), and Plaintiffs have
acknowledged that they intend to release TB&W as a defendant and seek permission
from the Bankruptcy Court to bring claims against TB&W. (Doc. 17 at 8). Plaintiffs’
claims against TB&W are therefore DISMISSED without prejudice.
In accordance with the foregoing, it is hereby ORDERED and ADJUDGED that:
1. Defendants’ Motion to Dismiss (Doc. 7) is GRANTED.
2. Plaintiffs’ claims against BOA, BAC, and MERS are DISMISSED with
prejudice.
3. Plaintiffs’ claims against TB&W are DISMISSED without prejudice.
4. All other pending motions are DENIED as moot.
DONE and ORDERED in Orlando, Florida on November 6, 2012.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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