Cooper v. Bank of America, National Association et al

Filing 22

MEMORANDUM AND ORDER granting defendants' 9 , 11 Motions to Dismiss. Plaintiff's complaint is dismissed. Signed by U.S. District Senior Judge Sam A. Crow on 3/10/15. Mailed to pro se party Amy Cooper by certified mail; Certified Tracking Number: 7010 2780 0003 1927 5877 (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMY COOPER,
Plaintiff,
v.

Case No. 14-2550-SAC

BANK OF AMERICA, N.A., and
BRYAN CAVE, LLP,
Defendants.

MEMORANDUM AND ORDER
This case comes before the court on Defendants’ motions to dismiss
plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendants contend that the complaint is barred by res judicata.1
Plaintiff asserts claims against BANK OF AMERICA, N.A (BANA) for (1)
violations of the Fair Credit Reporting Act (FCRA); (2) violations of the
Kansas Fair Credit Reporting Act (KFCRA); (3) invasion of privacy; (4)
negligent hiring and supervision; (5) violations of the Fair Debt Collection
1

Defendants also contend in their reply brief that the complaint is barred by the RookerFeldman doctrine, but the Court shall not address that new issue since the Plaintiff did not
have a fair opportunity to respond to it. See Niles v. American Airlines, Inc., 563 F.Supp.2d
1208, 1213 (D.Kan. 2008). Further, the Rooker–Feldman doctrine “is confined to cases …
brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review
and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (emphasis added). See D.A. Osguthorpe
Family Partnership v. ASC Utah, Inc., 705 F.3d 1223, 1232 (10th Cir. 2013) (finding plaintiff
filed its federal suit while the state court appeal was still pending so Rooker–Feldman
doctrine was inapplicable).

Practices Act (FDCPA); and (6) violations of the Kansas Consumer Protection
Act (KCPA). These claims arise from BANA’s attempts to collect payments
due and foreclose under a note and deed of trust Plaintiff executed on May
23, 2006 with another creditor. Plaintiff essentially alleges that she does not
have a loan with BANA and that BANA has no right to attempt to collect
payments from her.
The motions to dismiss are based on a prior action Defendants filed in
Missouri. On January 15, 2013, BANA filed an action in Missouri, Case No.
1331-CV00051, seeking to foreclose the Deed of Trust that was secured by
Plaintiff’s property in Springfield, Missouri (“Missouri action”).
Plaintiff filed this federal case on October 28, 2014. One week later, on
November 4th, the Missouri court entered a Final Order and Judgment
dismissing Plaintiff’s counterclaims with prejudice and finding that BANA had
legal authority to foreclose the Deed of Trust because it was the holder of
the note and Deed of Trust at issue. Dk. 10, Exh. B.
Bryan Cave LLP acted as BANA’s legal counsel in the Missouri action.
Plaintiff brings claims against that law firm in this case for negligent hiring
and supervision, FDCPA violations, and KCPA violations, based upon that
representation.

2

Motion to Dismiss Standard
To survive a motion to dismiss for failure to state a claim, a complaint
must have facial plausibility.
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim for relief that is
plausible on its face.” Id. [Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)] at 570. A claim has
facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the Defendant is liable
for the misconduct alleged. Id. at 556 [127 S.Ct. 1955]. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a Defendant has acted
unlawfully. Id. Where a complaint pleads facts that are “merely
consistent with” a Defendant's liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’ “ Id. at
557 [127 S.Ct. 1955].
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884
(2009). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. “[C]ourts should look to
the specific allegations in the complaint to determine whether they plausibly
support a legal claim for relief.” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210,
1215 n. 2 (10th Cir. 2007).
In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to
assessing the legal sufficiency of the allegations contained within the four
corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th
Cir. 2008). But in considering the complaint in its entirety, the Court also
examines any documents “incorporated into the complaint by reference,”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct.
3

2499, 168 L.Ed.2d 179 (2007), documents attached to the complaint,
Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012), and
matters of which a court may take judicial notice, Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322-323, 127 S.Ct. 2499, 2509 (2007).
Plaintiff has attached copies of various documents to her complaint.
Defendants attach to their briefs various papers filed in the Missouri action,
and the Court takes judicial notice of them. See Barnes v. United States,
776 F.3d 1134, 1137 (10th Cir. 2015).
Res Judicata
The Full Faith and Credit Act, 28 U.S.C. § 1738 (1982), requires a
federal court to give the same preclusive effect to a state-court judgment
that the judgment would be given in the courts of the state in which the
judgment was rendered. Kremer v. Chemical Construction Corp., 456 U.S.
461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982); Campbell v. City of
Spencer, __ F.3d __, 2014 WL 7145511 (10th Cir. 2014). The claimpreclusive effect of the judgment in the Missouri action is thus determined in
this case by Missouri law. See Jarrett v. Gramling, 841 F.2d 354, 356 (10th
Cir. 1988).
Under Missouri law, res judicata bars relitigation of claims when the
following four elements are present:
1) identity of the thing sued for; 2) identity of the cause of action; 3)
identity of the persons and parties to the action; and 4) identity of the
quality of the person for or against whom the claim is made. King
4

General Contractors, Inc. v. Reorganized Church of Jesus Christ of
Latter Day Saints, 821 S.W.2d 495, 500 (Mo.banc 1991).
Briscoe v. Walsh, 445 S.W.3d 660, 664 (Mo.App. E.D. 2014). The doctrine
bars not only claims made, but claims that could have been made in the
case.
Unlike collateral estoppel, res judicata applies not only to points and
issues upon which the court was required by the pleadings and proof
to form an opinion and pronounce judgment, but to every point
properly belonging to the subject matter of litigation and which the
parties, exercising reasonable diligence, might have brought forward
at the time. Id. Put otherwise, a party may not litigate an issue and
then, upon an adverse verdict, revive the claim on cumulative grounds
which could have been brought before the court in the first proceeding.
Id. “Separate legal theories are not to be considered as separate
claims, even if ‘the several legal theories depend on different shadings
of the facts, or would emphasize different elements of the facts, or
would call for different measures of liability or different kinds of relief’
” Id., quoting Siesta Manor, Inc. v. Community Federal Savings and
Loan Association, 716 S.W.2d 835, 839 (Mo.App. E.D.1986).
Briscoe, 445 S.W.3d at 664.
Plaintiff’s opposition to the motions to dismiss states, among other
matters, that BANA did not show possession of her original note, that she
has never done business or had a credit transaction with BANA, and that
BANA has no lawful interest in her property as a creditor. But the final order
and judgment in the Missouri action traced the assignment of the Deed of
Trust at issue from the original creditor to BANA, a successor by merger, and
found that BANA is entitled to enforce the Note and Deed of Trust. It further
found that the original Note had been lost or misplaced and that despite a
reasonable and diligent search, BANA could not find it. These and other
5

findings in the Missouri order address the very facts and issues Plaintiff has
raised in this case in response to the motions to dismiss. Plaintiff also
contends that she did not get a jury trial and was not permitted to cross
examine Defendants in the Missouri action. But since the Missouri order was
based on a summary judgment, no jury trial or cross-examination was
necessary or proper.
In the Missouri action, BANA brought suit against Ms. Cooper, the
plaintiff in this case, to enforce its rights under the Note and Deed at issue in
this case. Ms. Cooper counterclaimed, alleging:
1. Failure by [BANA] to validate the Debt under RSMO § 400-9-210(b)
and USC 15 Section 1692g, making [BANA] liable and indebted to
[Plaintiff] for $5.000.00;
2. False reporting to Credit Bureaus, causing, damaged credit and
harm [Plaintiff] makes a claim for $5,000.00;
3. For [BANA’s] deceitful false billing, U.S. Mail Fraud and wire fraud,
[BANA] is indebted to the Defendant for $15,000.00; and
4. [BANA] is indebted to [Plaintiff] for $25,000 due to identity theft.
See Dk. 10, Exh. A; Dk. 12 Exh. A. Plaintiff’s underlying assertion was that
BANA had no legitimate claim of interest in her property.
The documents properly considered by this court on the motions to
dismiss demonstrate the presence of the four elements required for res
judicata under Missouri law, as detailed below.
6

Identity of the thing sued for
In the Missouri case, as here, Plaintiff sought to establish BANA’s lack
of ability to foreclose on her property and money damages for its alleged
violation of the statutes stated in her counterclaims, above. The “thing sued
for” there via her counterclaims, is identical to the thing sued for here in her
complaint. See, e.g., Palmore v. City of Pacific, 393 S.W.3d 657, 666
(Mo.App. E.D. 2013) (finding this element “satisfied because ‘the thing sued
for’ in both actions was monetary damages arising out of the same set of
facts.”).
Identity of the cause of action
This element focuses on the factual basis of the claims.
This Court has defined the identity of the cause of action as “the
underlying facts combined with the law, giving a party a right to a
remedy of one form or another based thereon.” Williams v. Fin. Plaza,
Inc., 78 S.W.3d 175, 183 (Mo.App. W.D. 2002) (citation and
quotations omitted). It is not necessary that the causes of action be
identical, but the claims must have arisen out of the “ ‘same act,
contract, or transaction.’ ” Chesterfield Village, Inc. v. City of
Chesterfield, 64 S.W.3d 315, 318–19 (Mo. banc 2002) (citation
omitted); Jordan v. Kansas City, 929 S.W.2d 882, 886 (Mo.App. W.D.
1996). As such, the focus is on the “factual bases of the claims, not
the legal theories.” Chesterfield Village, Inc., 64 S.W.3d at 319.
Xiaoyan Gu v. Da Hua Hu, 447 S.W.3d 680, 689-90 (Mo.App. E.D. 2014).
The term “transaction” is to be broadly construed and includes “all of the
facts and circumstances which constitute the foundation of a claim.” Andes,
897 S.W.2d at 23.
Here, both actions arise out of the same underlying facts, namely,
7

attempting to enforce or oppose foreclosure on Plaintiff’s property. The
subject matter of both cases is the same. This is true even as to Plaintiff’s
claim against Bryan Cave for negligent hiring and supervision, which states a
different legal theory arising out of the same facts and challenges the
manner of Bryan Cave’s representation of BANA in the Missouri action.
Identity of the persons and parties to the action
Plaintiff was the named defendant and BANA was the named plaintiff in
the Missouri action. Bryan Cave was not, however, named in that case. But
res judicata applies to the parties and their privies, meaning that the party
in the instant action need not have actually been a party in the prior action.
Palmore v. City of Pacific, 393 S.W.3d 657, 666, 667 (Mo.App. E.D. 2013).
For privity to exist, as to satisfy the same party identity, the interests of the
party and non-party must be “so closely intertwined that the non-party can
fairly be considered to have had his or her day in court.” Stine v. Warford,
18 S.W.3d 601, 605 (Mo.App. W.D. 2000). And although Plaintiff arguably
did not state counterclaims against Bryan Cave, Plaintiff did make
allegations expressly against Bryan Cave in that case by alleging that Bryan
Cave misled her by claiming to have the authority to foreclose, that it
engaged in harassment or abuse by sending her threats to foreclose and
demanding payment, that it made false representations by threatening to
foreclose, and that it engaged in unfair practices by not producing admissible
evidence to prove her debt was truly owed. See Dk. 12, Exh. C (Opening
8

Statement). Bryan Cave had the same interests as BANA since it was acting
as its attorney or agent in the Missouri Action rather than in its individual
capacity, so was “tightly aligned with the interest” of BANA. See James v.
Paul, 49 S.W.3d 678, 683–84 (2001). This is sufficient to meet this element.
Identity of the quality of the persons
The same “quality of person” exists where defendants were identical
and were sued in the same capacity in both suits. See Palmore v. City of
Pacific, 393 S.W.3d 657, 667 (Mo. E.D. 2013). This requirement is met
where a defendant's “status” is the same in both suits. Jordan v. Kansas
City, 929 S.W.2d 882, 887 (Mo. WD 1996.). The parties in this case acted in
their same capacities in the Missouri case as here.
Plaintiff’s complaint is therefore barred by res judicata and shall be
dismissed.
IT IS THEREFORE ORDERED that Defendants’ motions to dismiss (Dks
9, 11) are granted and that Plaintiff’s complaint is hereby dismissed.
Dated this 10th day of March, 2015, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

9