Walker v. Ocwen Loan Servicing, LLC
Filing
13
Memorandum Opinion and Order granting 9 Motion to Dismiss filed by Ocwen Loan Servicing, LLC. The court ORDERS that defendant's motion to dismiss be, and is hereby, granted, and that plaintiff's claims against defendant be, and are hereby, dismissed with prejudice. (Ordered by Judge John McBryde on 11/21/2016) (mpw)
I
r·-~·
I
J,
...
IN TH:OR~H:E:;!ar:;y{ci~:~:;:~rSCO~f,;,~,~'~'~~~~~<>~il
!
§
MICHAEL WALKER,
i
ht'flli1\'
----
§
Plaintiff,
§
§
vs.
§
§
OCWEN LOAN SERVICING, LLC,
§
§
§
Defendant.
NO. 4:16-CV-925-A
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Ocwen
Loan Servicing, LLC, to dismiss. Plaintiff, Michael Walker,
although having been granted an extension of time, has failed to
respond to the motion, which is ripe for ruling. The court,
having considered the motion, the record, and applicable
authorities, finds that the motion should be granted.
I.
Plaintiff's Claims
On August 31, 2016, plaintiff filed his original petition in
the 48th Judicial District Court of Tarrant County, Texas,
seeking to stop a foreclosure set for September 6, 2016.
Plaintiff urged that defendant was "violating the Texas debt
collection statutes by proceeding with collection activities
before substantially validating the debt.n Doc.
1
The "Doc.
1
1, Ex. C-1 at 5.
"reference is to the number of the item on the docket in this action.
Defendant timely filed its notice of removal, bringing the action
before this court.
II.
Grounds of the Motion
Defendant asserts two grounds in support of its motion.
First, this action is barred by res judicata. Second, even if res
judicata does not apply, plaintiff has failed to assert facts
alleging a plausible cause of action against defendant.
III.
Applicable Legal Principles
Dismissal under Rule 12(b) (6) on res judicata grounds is
appropriate when the elements of res judicata are apparent on the
face of the pleadings. Dean v. Mississippi Bd. of Bar Admissions,
394 F. App'x 172, 175 (5th Cir. 2010). In making such a ruling,
"[t]he court may consider documents attached to or incorporated
in the complaint and matters of which judicial notice may be
taken."
United States ex rel. Willard v. Humana Health Plan of
Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003). In addition, the
court may take judicial notice of the record in a prior related
proceeding over which it presided, and may dismiss a complaint
sua sponte under principles of res judicata.
California, 530 U.S. 392, 412
(2000)
Arizona v.
(" [I]f a court is on notice
that it has previously decided the issue presented, the court may
2
dismiss the action sua sponte, even though the defense has not
been raised.").
IV.
Analysis
The court concludes that it is readily apparent from the
face of the petition and proceedings of which the court may take
judicial notice that the elements of res judicata are met, and
that this action must be dismissed.
Under Fifth Circuit law,
"res judicata is the 'venerable
legal canon' that insures the finality of judgments and thereby
conserves judicial resources and protects litigants from multiple
lawsuits.
Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499
(5th Cir. 2004)
(quoting United States v. Shanbaum, 10 F.3d 305,
310 (5th Cir. 1994)).
The doctrine precludes the relitigation of
claims which have been fully adjudicated or arise from the same
subject matter, and that could have been litigated in the prior
action.
Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th
Cir. 1983).
Under res judicata, a prior judgment bars a
subsequent judgment when (1) the parties are identical or in
privity;
(2) the judgment in the prior action was rendered by a
court of competent jurisdiction;
(3) the prior action was
concluded by a final judgment on the merits; and (4) the same
claim or cause of action was involved in both actions.
3
Test
Masters Educ. Servs., Inc. v. Singh, 428 F. 3d 559, 571 (5th Cir.
2005) .
In determining whether the same claims or causes of action
are brought, the Fifth Circuit has adopted the transactional
test,
in which all claims arising from a "common nucleus of
operative facts" and could have been brought in the first
lawsuit, are barred by res judicata.
at 499.
Procter & Gamble, 376 F.3d
In Nilsen, the court explained:
[I]t is black-letter law that res judicata, by contrast
to narrower doctrines of issue preclusion, bars all
claims that were or could have been advanced in support
of the cause of action on the occasion of its former
adjudication
. not merely those that were
adjudicated.
Nilson, 701 F.2d at 560
(emphasis in original).
See also Petro-
Hunt, L.L.C. v. United States, 365 F.3d 385, 395-96 (5th Cir.
2004)
(prior judgment's preclusive effect extends to all rights
of plaintiff "with respect to all or any part of the transaction,
or series of connected transactions, out of which the [original]
action arose."); Matter of Howe, 913 F.2d 1138, 1144
1990)
(5th Cir.
(" [T]he critical issue is not the relief requested or the
theory asserted but whether plaintiff bases the two actions on
the same nucleus of operative facts.").
In this case, all four elements of res judicata are met.
First, the same plaintiff has brought an action against the same
4
defendant in both lawsuits.
Second, the judgment in the prior
action, No. 4:14-CV-081-0, was rendered by this court, which is a
court of competent jurisdiction.
Third, the prior action was
concluded by a final judgment on the merits, as all claims and
causes of action in the prior action were dismissed with
prejudice. Fourth, the claims and causes of action raised by
plaintiff in both actions were related to plaintiff's interest in
the same property and revolved around plaintiff's belief that
defendant had acted wrongfully in relation to the lien on his
property and in attempting to foreclose the lien on his property.
Thus, all of plaintiff's claims in the instant action could have
been brought in the prior action, and must be dismissed. Warren
v. Mortgage Elec. Registration Sys., Inc., 616 F. App'x 735, 73738
( 5th C i r . 2 0 15 )
v.
Order
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and that plaintiff's claims against defendant
be, and are hereby, dismissed with prejudice.
I
SIGNED November 21, 2016.
/
JO
States District r g e
/
L
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?