Oikemus et al v. Fidelity Mortgage Services, Inc. et al

Filing 32

MEMORANDUM. Signed by Judge William M Nickerson on 8/28/14. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

EDWARD OIKEMUS, JR. et al.

v.

FIDELITY MORTGAGE SERVICES,
INC. et al.
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Civil Action No. WMN-13-3899

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MEMORANDUM
Plaintiffs filed this action in the Circuit Court for Cecil
County, Maryland, alleging various improprieties that led to a
foreclosure on their residence.
Court on January 6, 2014.

The case was removed to this

Following removal, several of the

Defendants were voluntarily dismissed.

After numerous

extensions of time to respond to the Complaint, the remaining
Defendants - HSBC Bank USA, N.A., as Trustee for Securitized
Trust Renaissance Home Equity Loan Trust 2007-3; Wells Fargo
Bank, N.A.; Ocwen Loan Servicing, LLC; and, Mortgage Electronic
Registration Systems, Inc. (Remaining Defendants) - filed a
motion to dismiss on June 6, 2014.

ECF No. 28.

Plaintiffs were

granted an extension of time from June 23, 2014 to July 23,
2014, to respond to that motion but Plaintiffs have failed to
file any opposition.

The motion is thus ripe for review.

In addition to challenging the merits of each of the claims
brought against them, the Remaining Defendants argue that all of
those claims are barred by res judicata.

The foreclosure of

Plaintiffs’ home was the subject of a previous action in the
Circuit Court for Cecil County, Maryland, Nadel v. Oikemus, Case
No. 07C13000162.

As part of the proceedings in that action,

Plaintiffs challenged the foreclosure on the ground of lack of
notice and a hearing was held on that issue on October 4, 2013.
The lack of notice was the only ground asserted by Plaintiffs in
challenging the foreclosure.

That challenge was rejected by the

court and a Final Order of Ratification of Sale was entered by
the Circuit Court.

That decision was appealed to the Maryland

Court of Special Appeals.
In the instant case, Plaintiffs assert various other
challenges to the foreclosure proceedings.

While cast in terms

of lack of standing, fraud in the inducement, slander of title,
violations of the Truth in Lending Act, 15 U.S.C. § 1601 et
seq., the Real Estate Settlement Procedures Act, and wrongful
disclosure, these new challenges all arise from Plaintiffs’
contention that their mortgage was improperly securitized.

In

the motion to dismiss, the Remaining Defendants assert that all
of these claims and defenses could have been brought in the
previous action, but were not.

Therefore, the Remaining

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Defendants argue, Plaintiffs’ claims are all barred by the
doctrine of res judicata.
Under Maryland law, a claim will be dismissed under the
doctrine of res judicata where the defendant demonstrates the
following: “(1) the parties in the present litigation are the
same or in privity with the parties in the earlier dispute; (2)
the claim presented in the current action is identical to the
one determined in the prior adjudication; and (3) there has been
a final judgment on the merits.”

Gaston v. PNC Bank, Nat.

Assoc., Civ. No. 12-2343, 2013 WL 140927, at *3 (D. Md. Sept. 7,
2013).

Even if the plaintiff's legal theory differed in the

earlier dispute, res judicata still may bar the current action,
provided that “the second suit arises out of the same
transaction or series of transactions as the claim resolved by
the prior judgment.”

Id. (citing Ohio Valley Envtl. Coal. v.

Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009)).

Here, the

Remaining Defendants, as the holders or servicers of the Note
and Deed of Trust, are certainly in privity with Jeffrey and
Scott Nadel, the substitute trustees and plaintiffs in the state
foreclosure action.

This suit also clearly arises out of the

same transaction as the state court suit.
Because the state court action is apparently still on
appeal, one could argue that the judgment in the prior action in
not final.

If, for that reason, this action is not subject to
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dismissal under the doctrine of res judicata, it would be
barred, nonetheless, by the rule against claim splitting.

Like

res judicata, claim splitting “prohibits a plaintiff from
prosecuting its case piecemeal, and requires that all claims
arising out of a single wrong be presented in one action.”
Sensormatic Sec. Corp. v. Sensormatic Elec. Corp., 452 F. Supp.
2d 621, 626 (D. Md. 2006).

“In a claim splitting case, as with

the traditional res judicata analysis, the second suit will be
barred if the claim involves the same parties or their privies
and arises out of the same transaction or series of transactions
as the first claim.”

Id. (internal quotation omitted).

For these reasons and in the absence of any opposition to
the motion from Plaintiffs, the Court will grant the Remaining
Defendants’ motion and close this case.

A separate order will

issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED:

August 28, 2014

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