BAILEY v. DEUTSCHE BANK TRUST COMPANY AMERICAS
ORDER granting 2 Motion for Leave to Proceed in forma pauperis; terminating as moot 8 Motion to Dismiss for Failure to State a Claim; and, Dismissing this action. Ordered by Judge C. Ashley Royal on 3/5/13 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
LINDA M. BAILEY,
No. 3:13‐CV‐00001 (CAR)
DEUTSCHE BANK TRUST
COMPANY AMERICAS as
TRUSTEE for RALI 2005 QA12,
ORDER ON PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS
Before the Court is pro se Plaintiff Linda M. Bailey’s Motion for Leave to Proceed
In Forma Pauperis [Doc. 2] against Defendant Deutsche Bank Trust Company Americas
as Trustee for RALI 2005 QA12. Plaintiff’s various claims arise from Defendant’s
acquisition of 701 Mohansic Avenue, Loganville, Georgia 30052 (the “Property”) on July
7, 2009, after Plaintiff defaulted on her mortgage. Based on Plaintiff’s allegations in
support of her Motion to Proceed In Forma Pauperis, it appears Plaintiff cannot pay the
fee required to commence this action. Thus, Plaintiff’s application [Doc. 2] is
GRANTED. However, for the reasons discussed below, her Complaint [Doc. 1] is
DISMISSED with prejudice.
As the Court noted in its previous order denying Plaintiff’s requests for
injunctive relief, the instant action is one in a long line of judicial proceedings initiated
by Plaintiff in an attempt to maintain possession of the Property. Plaintiff’s first efforts
in federal court date back to June 23, 2010, when she first filed a lawsuit captioned Bailey
v. GMAC Mortgage Corporation, et al., in the Northern District of Georgia.1 In that case,
Plaintiff alleged numerous violations of federal consumer protection statutes and state
law claims stemming from the original mortgage transaction and subsequent
foreclosure. She amended her initial complaint on August 11, 2010, demanding the
court set aside the foreclosure, declare the mortgage null and void, grant exclusive
possession of the property to Plaintiff, and award damages in the amount of $1.1
On February 4, 2011, the Northern District adopted the magistrate judge’s
recommendation to dismiss Plaintiff’s complaint without prejudice. However, in light
of Plaintiff’s pro se status and her request for leave to again amend her complaint, the
court granted Plaintiff another opportunity to file a properly amended complaint. In its
order, the court also cautioned Plaintiff that her failure to file a properly amended
complaint would result in dismissal of her action with prejudice.
No. 1:10‐CV‐01943 (CAP).
Accordingly, Plaintiff filed a second amended complaint in February 17, 2011,
wherein she attempted to add two other defendants and expounded upon her earlier
filings by alleging that the July 2009 foreclosure was invalid due to violations of a
Pooling and Servicing Agreement, lack of a valid recorded assignment, and a
defendant’s improper involvement in the mortgage transaction. After considering
Plaintiff’s amended pleadings, the court entered an order dismissing the complaint on
February 25, 2011. In its order, the court held that the amended complaint and second
amended complaint were both “shotgun pleadings” and that “Plaintiff’s failure to
follow the directions in the [magistrate judge’s recommendation] by failing to cure the
deficiencies about which she has repeatedly been warned warrants the dismissal of her
claims.”2 The court’s final judgment was unequivocally with prejudice.
Plaintiff filed the instant action against Defendant on January 2, 2013, in an
attempt to enjoin or “extinguish” an order for writ of possession issued in a state court
dispossessory proceeding on December 18.3 Taking Plaintiff’s Complaint as a whole,
she seeks damages and costs, declaratory judgment, injunctive relief, and a judgment
“forever enjoining said Defendant from claiming any estate, right, title or interest in the
subject property” based on Defendant’s alleged intentional infliction of emotional
Id. Order Adop. R&R at 4 [Doc. 26].
Compl. at 1 [Doc. 1]. The Court also notes that Plaintiff filed for Chapter 7 bankruptcy on December 29,
2011, in the United States Bankruptcy Court for the Middle District of Georgia, Case No. 11‐32112. On
May 3, 2012, the Court granted Deutsche Bank’s motion for relief from stay, authorizing Deutsche Bank
to proceed with the dispossessory action in state court. Plaintiff was discharged from bankruptcy on
November 26, 2012.
distress and negligence, all stemming from Defendant’s participation in a “wrongful
STANDARD OF REVIEW
In forma pauperis proceedings are governed by 28 U.S.C. § 1915(e), which requires
the Court to conduct a preliminary review of a plaintiff’s complaint and dismiss any
case that is (1) frivolous or malicious; (2) fails to state a claim on which relief may be
granted; or (3) seeks monetary relief against a defendant who is immune from such
relief.5 The standard of review under this statute is identical to a motion to dismiss
under Rule 12(b)(5) of the Federal Rules of Civil Procedure, and as such, a complaint
may be dismissed for failure to state a claim if the allegations show that an affirmative
defense, such as res judicata, bars recovery.6 Because Plaintiff is proceeding pro se, the
Court construes her pleadings more liberally than it would formal pleadings submitted
by a lawyer. 7
The doctrine of res judicata, or claim preclusion, bars plaintiffs from bringing
successive legal actions when (1) a prior decision was rendered by a court of competent
jurisdiction; (2) there was a final judgment on the merits; (3) the parties are identical;
Memo. at 4 [Doc. 1‐15].
28 U.S.C. § 1915(e)(2)(B).
6 See Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 206 (2002) (affirming dismissal of complaint under §
1915(e) as barred by res judicata); see also Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en
7 Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990).
and (4) the prior and successive suits involve the same cause of action.8 This bar
pertains not only to claims that were raised in the prior action, but also to claims that
could have been raised at the time the prior actions was filed.9 In determining whether
the prior and present causes of action are the same, the court must decide whether the
actions arise “out of the same nucleus of operative fact, or [are] based upon the same
factual predicate.”10 In this case, the Court compares Plaintiff’s prior federal action,
Bailey v. GMAC Mortgage Corporation, No. 1:10‐CV‐01943 (CAP) (N.D. G.A.), (the “prior
action”) to the instant action.11
The instant action satisfies all the elements of res judicata and must be barred
from federal court. The Northern District of Georgia, a court of competent jurisdiction,
rendered a judgment in Plaintiff’s prior action, thereby satisfying the first element of the
Court’s res judicata analysis. In particular, the Northern District expressly dismissed the
prior action with prejudice under Rule 12(b)(6), serving as a final judgment on the
merits of Plaintiff’s claims for purposes of the second element of res judicata.12
Third, Defendant is in privity with the party to the prior action, GMAC
Mortgage, LLC (“GMAC”) for purposes of res judicata. As mentioned above, res judicata
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003).
Id.; In re Piper Aircraft Corp., 244 F.3d 1289, 1298 (11th Cir. 2001).
10 Davila, 326 F.3d at 1187 (quoting In re Piper, 244 F.3d at 1297 (11th Cir. 2001)) (internal quotation marks
11 The Court applies federal law in this case “because federal preclusion principles apply to prior federal
decisions.” EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004).
12 Citibank, N.A. v. Data Lease Fin. Corp., 904 F.3d 1498, 1501 (11th Cir. 1990) (“[D]ismissal of a complaint
with prejudice satisfies the requirement that there be a judgment on the merits.”).
bars successive litigation “when the parties are the same (or in privity) [and] if the party
against whom the issue was decided had a full and fair opportunity to litigate the issue
in the earlier proceeding.”13 “Privity describes a relationship between one who is a
party of record and a nonparty that is sufficiently close so a judgment for or against the
party should bind or protect the nonparty.”14 “This relationship between the party and
nonparty may be one of several types: where the nonparty has succeeded to the party’s
interest in the property, where the nonparty controlled the original suit, where the
nonparty’s interests were represented adequately by the party in the original suit, and
where the party and nonparty have concurrent interests in the same property right.”15
Although the Eleventh Circuit has not addressed the issue of privity between
loan servicers and lenders or transferees, several district courts have considered this
question and found privity exists.16 The Court finds these opinions persuasive.
Accordingly, Defendant, as trustee of the trust containing Plaintiff’s loan, is in privity
with GMAC, the party to the prior action and servicer of Plaintiff’s loan. Both GMAC
Pemco Aeroplex, Inc., 383 F.3d at 1285 (quoting In re Se. Banking Corp., 69 F.3d 1539, 1552 (11th Cir. 1995))
(internal quotation marks omitted).
14 Hart v. Yamaha‐Parts Distribs., Inc., 787 F.2d 1468, 1472 (11th Cir. 1986).
15 Id. (internal citations omitted).
16 See, e.g., Duke v. Nationstar Mortg., LLC, No. 2:12‐cv‐00157‐AR, 2012 WL 3852121, at *8 (N.D. Ala. Aug.
30, 2012) (finding servicer and lender (and its assignee) would be in privity for purposes of res judicata but
for a peculiar Alabama statute that is not implicated in the instant case); Huggins v. Bank Deutsche Nat’l TR
CO TRS, No. 2:11‐cv‐00147‐KJD‐LRL, 2011 WL 2976818, at *3‐4 (D. Nev. July 21, 2011) (finding privity
between a lender and servicer); Stewart v. Deutsche Bank Nat’l Trust Co., No. 3:08‐CV‐475, 2010 WL
4004670, at *5‐6 (E.D. Tenn. Oct. 12, 2010) (finding that trustee, lender, and servicer shared an “identity of
interests relating to the subject matter of the litigation” and were thus in privity).
and Defendant shared a concurrent interest in collecting the debt owed by Plaintiff and
enforcing the same property right, which was secured by the Property. 17
In addition, the instant action satisfies the fourth element of the Court’s res
judicata analysis because it “arises out of the same nucleus of operative fact, or is based
upon the same factual predicate” as Plaintiff’s prior action.18 To elaborate, “[r]es judicata
applies 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.”19 In this
action, as in her prior action, Plaintiff’s request for declaratory judgment and claims of
wrongful foreclosure or negligent foreclosure arise out of the same “nucleus of fact,”
namely, the July 2009 foreclosure sale. Although Plaintiff raises different legal theories
in her latest attempt to forestall her imminent eviction, Plaintiff could have raised these
claims when she first filed suit in federal court almost three years ago. Accordingly, the
claims in the instant action are now barred by res judicata, and the Court must dismiss
Plaintiff’s Complaint under § 1915(e).
To the extent Plaintiff attempts to present any “new” negligence claims based on
her subsequent bankruptcy proceeding and Defendant’s newly‐acquired writ of
possession, the Court finds that these claims are equally barred by res judicata.
The Court’s conclusion is bolstered by Plaintiff’s unsuccessful attempt to join Defendant as a party to
her prior action. See Bailey, No. 1:10‐CV‐01943 (CAP), Doc. 2 (N.D. Ga. June 24, 2010).
18 Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999); see also Singh v. U.S. Att’y Gen., 561 F.3d
1275, 1280 (11th Cir. 2009).
19 Manning v. City of Auburn, 953 F.2d 1355, 1358‐59 (11th Cir. 1992) (citation and quotations omitted).
Although Plaintiff takes issue with Defendant’s actions after her prior federal suit, all of
Plaintiff’s negligence claims are premised on Defendant’s initial “wrongful foreclosure”
on Plaintiff’s Property in violation of O.C.G.A. § 44‐14‐162.2. In particular, Plaintiff
claims that Defendant’s attempts to possess the Property and validate the foreclosure
sale are negligent because Defendant did not comply with O.C.G.A. § 44‐14‐162.2 before
foreclosing on the Property. As the Court previously stated, Plaintiff’s wrongful
foreclosure claim is barred by res judicata because she could have pursued this claim in
her prior federal action. Accordingly, Plaintiff cannot assert “new” negligence claims
that are ultimately based on the same wrongful foreclosure. Allowing these claims to
proceed would be contrary to one the core purpose of res judcata: minimizing the
possibility of inconsistent decisions.20
Finally, the Court turns to Plaintiff’s remaining claim of intentional infliction of
emotional distress and her request for injunctive relief. First, Plaintiff fails to state an
intentional infliction of emotional distress claim because she does not allege any factual
basis for her claim.21 Her bare assertion that Defendant’s acts “constitute an outrage”
Foster v. RSC Equip. Rental, Inc., No. 1:09‐cv‐479‐TCB, 2009 WL 4840649, at *2 (11th Cir. Dec. 1, 2009)
(quoting Mont. v. United States, 440 U.S. 147, 153‐54 (1979)) (emphasis added). As the Sixth Circuit
succinctly stated, “[w]hen, as here, it is obvious that the alleged ongoing [misconduct] is actually the
defendant continuing on the same course of conduct, which has previously been found by a court to be
proper, a subsequent court must conclude that the plaintiff is simply trying to relitigate the same
conduct.” Dubuc v. Green Oak Twp., 312 F.3d 736, 751 (6th Cir. 2002); accord In re Ashlock, No. 11‐15352,
2012 WL 554998, at *5 (E.D. Tenn. Feb. 21, 2012).
21 The Court cautions Plaintiff that any intentional infliction of emotional distress claims arising from the
2009 foreclosure may also be barred by res judicata.
does not demonstrate that Defendant’s actions were “so terrifying or insulting as to
naturally humiliate, embarrass or frighten to plaintiff.”22 As to Plaintiff’s request for
injunctive relief, the Court hereby incorporates its reasoning in the January 31, 2012
Order denying Plaintiff’s motions for a temporary restraining order and preliminary
Based on the foregoing, Plaintiff’s Motion to Proceed In Forma Pauperis [Doc. 2] is
GRANTED. However, Plaintiff’s claims arising from the July 2009 foreclosure sale are
barred by res judicata and hereby DISMISSED with prejudice.23 Plaintiff’s IIED claim
and request for injunctive relief are DISMISSED without prejudice. Finally,
Defendant’s pending Motion to Dismiss [Doc. 8] is TERMINATED as MOOT.
SO ORDERED this 5th day of March, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
See Gaston v. S. Bell Tel. & Tel. Co., 674 F. Supp. 347, 352 (N.D. Ga. 1987); see also Moore v. McCalla Raymer,
LLC, No. 1:12‐CV‐01714‐TWT‐JFK, 2012 U.S. Dist. LEXIS 183332, *28‐29 (N.D. Ga. Nov. 28, 2012).
23 See Busse v. Steele, No. 2:10‐cv‐89‐FtM‐33TGW, 2010 WL 3893766, at *1 (M.D. Fla. Sept. 30, 2010)
(dismissing pro se complaint barred by res judicata with prejudice).
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