Tonea v. Nationstar Mortgage, LLC
Filing
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OPINION AND ORDER adopting Magistrate Judge John K. Larkins, III's Final Report and Recommendation 5 , granting Nationstar Mortgage, LLC's Motion to Dismiss 3 and dismissing this action with prejudice. Signed by Judge William S. Duffey, Jr. on 6/21/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MIRCEA F. TONEA,
Plaintiff,
v.
1:17-cv-4138-WSD
NATIONSTAR MORTGAGE, LLC,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge John K. Larkins, III’s
Final Report and Recommendation [5] (“Final R&R”), which recommends
granting Defendant Nationstar Mortgage, LLC’s (“Defendant”) Motion to Dismiss
[3] and dismissing the action with prejudice.
I.
BACKGROUND
On October 18, 2017, Plaintiff Mircea F. Tonea (“Plaintiff”), proceeding pro
se, filed his “Verified Complaint for Lack of Standing to Foreclose, Fraud in the
Concealment, Fraud in the Inducement, Unconscionable Contract, Breach of
Contract, Breach of Fiduciary Duty, Slander of Title, Damages and Relief” [1] (the
“Complaint”). This is the fifth lawsuit filed by Plaintiff in an attempt to avoid a
foreclosure sale of property located at 1845 Oak Wind Lane, Buford, Georgia, and
at least Plaintiff’s third case against his mortgage servicer, Defendant.1 Plaintiff’s
Complaint contains a “rambling hodgepodge of legal and factual assertions[,]”
which “principally challenges the manner in which his mortgage loan was
securitized and assigned following its origination in 2004.” (See generally [1]; see
also [5] at 3). Plaintiff alleges a number of state law claims against Defendant and
seeks damages and declaratory relief. ([1] at 19-41).
On November 13, 2017, Defendant filed its Motion to Dismiss. In it,
Defendant argues Plaintiff’s Complaint is an impermissible shotgun pleading and
fails to state a claim upon which relief can be granted. ([3.1] at 4-7). Defendant,
in the alternative, argues Plaintiff’s claims are barred by the doctrines of res
judicata and collateral estoppel. (Id. at 7-10). Plaintiff did not file a response to
the Motion to Dismiss. On January 26, 2018, the Magistrate Judge issued the Final
R&R, recommending granting Defendant’s Motion to Dismiss on the grounds that
Plaintiff’s Complaint is barred by the doctrine of res judicata. ([5] at 3). The
See Tonea v. Bank of Am., 1:12-cv-2642-WSD (N.D. Ga. 2012) (“Tonea
I”); Tonea v. Bank of Am., 1:13-cv-1435-WSD (N.D. Ga. 2014) (“Tonea II”);
Tonea v. Nationstar Mortg., LLC, 1:14-cv-2397-WSD (N.D. Ga. 2014) (“Tonea
III”); Tonea v. Nationstar Mortg., LLC, 1:16-cv-3009-WSD (N.D. Ga. 2016)
(“Tonea IV”). On January 31, 2017, this Court dismissed Tonea IV on its merits
for failure to state a claim upon which relief may be granted under Federal Rule of
Civil Procedure 12(b)(6), holding, among other things, that Plaintiff’s allegation
that Nationstar lacked standing did not support a cognizable claim for relief under
Georgia law. See Tonea v. Nationstar Mort. LLC, No. 1:16-cv-3009-WSD, 2017
WL 306982, at *4-5 (N.D. Ga. Jan. 31, 2017).
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parties did not file objections.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1); see also Jeffrey S. by Ernest S v. State Bd. of Educ. Of
State of Ga., 896 F.2d 507, 512, 513 (11th Cir. 1990). Where, as here, there have
been no objections filed, the Court reviews for plain error. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
The Magistrate Judge ultimately concluded Plaintiff’s Complaint is barred
by the doctrine of res judicata. “[R]es judicata can be applied only if all of four
factors are shown: (1) the prior decision must have been rendered by a court of
competent jurisdiction; (2) there must have been a final judgment on the merits; (3)
both cases must involve the same parties or their privies; and (4) both cases must
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involve the same causes of action.” E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d
1280, 1285 (11th Cir. 2004) (quotation omitted). An earlier decision precludes not
only identical claims, but also all legal theories and claims that could have been
raised earlier and that “aris[e] out of the same nucleus of operative fact.” Baloco v.
Drummond Co., Inc., 767 F.3d 1229, 1247 (11th Cir. 2014). The court may
consider the defense of res judicata on a motion to dismiss filed under Rule
12(b)(6) when the existence of the defense can be determined from the face of the
complaint. See Solis v. Global Acceptance Credit Co., 601 F. App’x 767, 771
(11th Cir. 2015). The court may also take judicial notice of its own records in
resolving a motion to dismiss. Id.
The Magistrate Judge found the first factor of the res judicata doctrine
satisfied because the decision in Tonea IV was rendered by this Court, “which is
unquestionably a court of competent jurisdiction.” ([5] at 5). The Magistrate
Judge next found the second factor satisfied because “the Court’s decision in
Tonea IV was a final judgment on the merits. “ (Id.). The Magistrate Judge further
found the third factor satisfied because “the parties in this action are identical to
those in Tonea IV.” Finally, the Magistrate Judge found the fourth factor satisfied
because “the instant case plainly concerns the same set of facts and legal
complaints as Tonea IV.” (Id. at 6). The Magistrate Judge concluded that
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Defendant “demonstrated that the four res judicata factors are met,” and, therefore,
its Motion to Dismiss is “due to be granted.” ([5] at 7). The Court finds no plain
error in the Magistrate Judge’s findings or recommendation.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins, III’s
Final Report and Recommendation [5] is ADOPTED.
IT IS FURTHER ORDERED that Nationstar Mortgage, LLC’s Motion to
Dismiss [3] is GRANTED and this action is DISMISSED WITH PREJUDICE.
SO ORDERED this 21st day of June, 2018.
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