Phillips v. Home Path Financial, LP et al
Filing
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Memorandum Opinion and Order granting 7 Motion to Dismiss filed by JP Morgan Chase Bank: The court ORDERS that the motion to dismiss be, and is hereby, granted, and that plaintiff's claims against defendants be, and are hereby, dismissed. (Ordered by Judge John McBryde on 12/1/2015) (trs)
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\ORTIIER.\ BISTHICTOFTEXAS
f!tEn
IN THE UNITED STATES DISTRICT COVRT
NORTHERN DISTRICT OF TEXAS I
FORT WORTH DIVISION
CARON SUE PHILLIPS,
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Plaintiff,
vs.
HOME PATH FINANCIAL, LP,
ET AL.
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LllEC~I-J
CLFRK, U.S. DiSTRICT COURT
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Deput~·
---NO. 4:15-CV-793-A
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Defendants.
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant JPMorgan
Chase Bank, N.A.,
("Chase") to dismiss. The court, having
considered the motion, the response of plaintiff, Caron Sue
Phillips (which is titled "Plaintiff,s Objection to Dismissal"),
the record, and applicable authorities, finds that the motion
should be granted.
I.
Plaintiff,s Claims
On September 25, 2015, plaintiff filed her original petition
in the 96th Judicial District Court of Tarrant County, Texas. On
October 13, 2015, she filed her amended petition. On October 21,
2015, Chase filed its notice of removal, bringing the action
before this court.
As best the court can tell, plaintiff appears to be
complaining about a non-judicial foreclosure conducted by Chase.
Defendant Home Path Financial, LP,
("Home Path") is alleged to be
the purchaser at the foreclosure sale. The record does not
reflect that Chase or Home Path was ever served with process.
Home Path has not appeared and plaintiff has taken no action to
pursue her claims against it.
II.
Grounds of the Motion
Chase alleges that plaintiff has not stated any claim upon
which relief can be granted. Further, Chase urges that
plaintiff's claims are barred by res judicata.
III.
Standard of Review
Rule S(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading. 1
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. S(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
quotation marks and ellipsis omitted) .
(2007)
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
1
1nasmuch as the Texas pleading standard has been brought into line with the federal standard,
the court is making its ruling on the basis of case law applicable to the federal standard. See Mastronardi
v. Wells Fargo Bank, N.A., No. 4:15-CV-452-A, 2015 WL 5472924, *4-5 (N.D. Tex. Sept. 17, 2015).
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simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.
Iqbal, 556 u.s. at 678.
To allege a plausible right
to relief, the facts pleaded must suggest liability; allegations
that are merely consistent with unlawful conduct are
insufficient. Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining whether a complaint
states a plausible claim for relief .
[is] a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense."
Id.
In considering a motion under Rule 12(b) (6), the court may
consider documents attached to the motion if they are referred to
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in the plaintiff's complaint and are central to the plaintiff's
claims. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir.
2003). The court may also refer to matters of public record.
Davis v. Bayless, 70 F.3d 367, 372 n.3
Connick, 15 F.3d 1338, 1343 n.6
(5th Cir. 1995); Cinel v.
(5th Cir. 1994). This includes
taking notice of pending judicial proceedings. Patterson v. Mobil
Oil Corp., 335 F. 3d 476, 481 n.1
(5th Cir. 2003).
IV.
Analysis
A.
Prior Litigation
Matters of public record reflect that this is the sixth
proceeding filed by plaintiff related to the foreclosure of a
purchase money lien on property located at 12051 Vista Ranch Way
in Tarrant County. In particular:
The first action, which sought injunctive relief to prevent
Chase from foreclosing and a declaration that plaintiff was the
owner of the property, was filed on May 29, 2013, and assigned
Civil Action No. 4:13-CV-437-A. That action was dismissed for
plaintiff's failure to pay the filing fee.
The second action, assigned Civil Action No. 4:13-CV-951-A,
appeared to allege that Chase's attorneys were required to submit
evidence of their authority to act on its behalf. In response to
an order to replead, plaintiff filed a complaint that was
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virtually identical to that filed in the first action, but was
accompanied by additional exhibits. That action was dismissed on
December 26, 2013, for failure to state a claim.
On March 31, 2014, plaintiff filed a Chapter 13 bankruptcy
petition in the Fort Worth Division of the United States
Bankruptcy Court for the Northern District of Texas, under Case
No. 14-41353-dml-13. Plaintiff identified Chase in her schedules
as holder of a secured claim against the property and filed a
statement of intent to reaffirm the debt. However, the bankruptcy
was dismissed for failure to pay the filing fee.
On December 1, 2014, plaintiff filed a lawsuit in the 17th
Judicial District Court of Tarrant County, Texas, which was
removed to this court and assigned Civil Action No. 4:14-CV-1020Y. Plaintiff asserted claims for breach of contract, slander of
title,
"void assignment of interest," "tort fraud," and
declaratory relief. By order and final judgment signed February
3, 2015, the court granted the motion of Chase and another
defendant to dismiss for failure to state a claim and dismissed
the action with prejudice. Plaintiff's motion to reopen was
denied.
On March 9, 2015, plaintiff filed a Chapter 7 proceeding,
again in the Fort Worth Division, under Case No. 15-40994. The
bankruptcy judge granted Home Path's motion for relief from
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automatic stay to permit eviction to continue. 2 Plaintiff filed a
notice of appeal from the ruling, which was assigned Civil Action
No. 4:15-CV-361-A, and the court affirmed the bankruptcy judge's
order.
B.
Res Judicata
The doctrine of res judicata bars the re-litigation of
claims that were or could have been raised in a prior action.
Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 312-13
(5th
Cir. 2004). Four elements are required to be met for res judicata
to apply:
(1) the parties in both suits must be identical;
(2) a
court of competent jurisdiction must have rendered the prior
judgment;
(3) the prior judgment must have been final and on the
merits; and (4) the plaintiff must raise the same cause of action
in both suits. Id., 383 F.3d at 313. To determine whether the
prior and current suits raise the same cause of action, the court
applies a transactional test. That is, a prior judgment's
preclusive effect extends to all rights of the plaintiff "with
respect to all or any part of the transaction, or series of
connected transactions, out of which the [original] action
arose." Id.
(quoting Petro-Hunt, L.L.C. v. United States, 365
F.3d 385, 395-96 (5th Cir. 2004)). The critical issue is whether
2
Plaintiff admitted in her notice of appeal that the foreclosure had taken place in December 2014.
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the two actions are based on the same nucleus of operative facts.
As Chase has shown/ each of the elements for application of
res judicata is met. Chase and plaintiff were parties to Civil
Action No. 4:14-CV-1020-Y; the court had jurisdiction over the
action; the prior judgment is final and on the merits; and/ the
claims in each action arise out of the same nucleus of operative
facts. Here/ as in Howe v. Vaughan (In re Howe)
1144 (5th Cir. 1990)
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913 F.2d 1138
1
the present case merely presents new
theories based on the same loan transaction and foreclosure
addressed in the earlier one. Plaintiff has not attempted to show
otherwise. Accordingly/ plaintiffts claims against Chase are
barred.
C.
Failure to State a Claim
The application of res judicata notwithstanding/ plaintiff
has not in any event stated a plausible claim against
defendants. 3 For the reasons discussed in Chase/s motion/ Texas
law does not support the claims plaintiff appears to be
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Even though Home Path has not appeared or joined in the motion to dismiss, the court is
satisfied that the dismissal for failure to state a plausible claim for relief against it is proper. The court
may consider the sufficiency of a complaint on its own initiative. Guthrie v. Tifco Indus., 941 F.2d 374,
379 (5th Cir. 1991). And, the court considers that dismissal of the claims against Home Path would be fair
inasmuch as plaintiff responded to the motion to dismiss as though it had been filed on behalf of both
defendants. Doc. 9 at 1. Lozano v. Ocwen Fed. Bank, F.S.B., 489 F.3d 636, 642-43 (5 1h Cir. 2007).
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asserting. And, plaintiff has not alleged any facts to support
any claim against either defendant.
V.
Order
For the reasons discussed herein,
The court ORDERS that the motion to dismiss be, and is
hereby, granted, and that plaintiff's claims against defendants
be, and are hereby, dismissed.
SIGNED December 1, 2015.
Judge
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