McPherson v. Bank of America, N.A. et al

Filing 6

MEMORANDUM OPINION AND ORDER granting 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
December 30, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

LESTER ANTHONY MCPHERSON,

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Plaintiff,
v.

BANK OF AMERICA, N. A. ; THE BANK
OF NEW YORK MELLON as Trustee
for the CWABS, INC., ASSETBACKED CERTIFICATES, SERIES
2006-24 TRUST; CWABS, INC.;
SPECIALIZED LOAN SERVICING,
LLC; and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
(a/k/a) MERS,
Defendants.

David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3498

MEMORANDUM OPINION AND ORDER

Plaintiff, Lester Anthony McPherson, filed this action in the
152nd Judicial District Court of Harris County,
Defendants Bank of America,

N .A.

Texas,

against

( "BANA"); The Bank of New York

Mellon as Trustee for the CWABS, Inc., Asset-Backed Certificates,
Series 20 06-24
Servicing,

LLC

( "BNY") ;
("SLS");

CWABS,
and

Inc.

( "CWABS") ; Specialized Loan

Mortgage

Electronic

Systems, Inc. (collectively, "Defendants") .
action to this court.
Motion

to

Dismiss

Registration

Defendants removed the

Pending before the court is Defendants'
Plaintiff's

Complaint

with

Incorporated

Memorandum of Law (the "Motion to Dismiss")

(Docket Entry No. 3) . 1

For the reasons stated below, the Motion to Dismiss will be granted.
I.
Plaintiff

Factual and Procedural Background

alleges

that

in

2006

he

obtained

a

loan

from

America's Wholesale Lender, a predecessor to BANA, secured by his
principal residence (the "Property").
on

the

loan.

SLS,

as
in

mortgage
February

In 2009 Plaintiff defaulted

servicer,
of

2015,

filed
and

a

an

foreclosure

action

permitting

foreclosure sale was issued on June 25,

expedited

default

order

2015.

On

September 1, 2015, BNY acquired the Property at foreclosure sale.
On

the

eve

of

the

foreclosure

sale

Plaintiff

filed

suit

against Defendants in Harris County District Court asserting claims
identical to those in the petition currently before this court. 2
Defendants removed the Prior Suit to this court. 3

Defendants moved

to dismiss under Rule 12(b) (6), and the court granted the motion,
dismissing

"all

of

the

plaintiff's

claims

against

all

of

the

1

Per Local Rules 7. 3 and 7. 4, because Plaintiff has not
responded to Defendants' Motion to Dismiss by the submission day,
the motion is treated as unopposed.
But failure to oppose the
motion is not in itself grounds for granting the motion. Servicios
Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702
F.3d 794, 806 (5th Cir. 2012).
The court must assess the legal
sufficiency of the complaint to determine whether dismissal is
warranted.
Id. Accordingly, the merits of the Motion to Dismiss
are discussed below.
2

See State Court Documents, Exhibit A to Notice of Removal in
Civil Action No. H-16-0663, styled McPherson v. Bank of America
N.A. ("McPherson I" or the "Prior Suit"), Docket Entry No. 1-1.
3

Notice of Removal in McPherson I, Docket Entry No. 1.
-2-

defendants" with prejudice. 4

Defendants now move to dismiss this

action for Plaintiff's failure to state a claim on the basis that
the doctrine of res judicata precludes relitigation of the same
claims or causes of action. 5
II.
A.

Rule 12 {b)

{6)

A Rule 12(b) (6)
pleadings

Standard of Review

and

is

motion tests the formal sufficiency of the

"appropriate

when

a

defendant

attacks

the

complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F. 3d 158, 161 (5th Cir. 2001), cert.
denied sub nom.
"[I] f

Cloud v. United States,

as a matter of

122 S.

Ct.

2665

(2002).

law it is clear that no relief could be

granted under any set of facts that could be proved consistent with
the allegations,

a claim must be dismissed."

Williams, 109 S. Ct. 1827, 1832
and citation omitted)
the

pleadings

in

(1989)

Neitzke v.

(internal quotation marks

The court generally is not to look beyond

deciding

a

motion

to

Robertson, 197 F.3d 772, 774 (5th Cir. 1999)

dismiss.

Spivey

v.

But "courts may also

consider matters of which they may take judicial notice."

Lovelace

v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996).

4

Amended Order Granting Motion to Dismiss
Docket Entry No. 11.
5

in McPherson I,

Defendants offer additional arguments, many of them raised in
the Prior Suit, but since the doctrine of res judicata bars further
litigation, the court does not address those arguments.
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B.

Res Judicata

Res judicata,

or claim preclusion,

"bars the litigation of

claims that either have been litigated or should have been raised
in an earlier suit."

Test Masters Educational Services, Inc. v.

Singh, 428 F. 3d 559, 571 (5th Cir. 2005), cert. denied, 126 S. Ct.
1662 (2006)

(citations omitted).

federal

court

rules."

Ellis v. Amex Life Insurance Co., 211 F.3d 935, 937 (5th

Cir. 2000)

judgment

is

"The preclusive effect of a prior

controlled

by

federal

res

judicata

(citations omitted).

The general principle announced in numerous cases is that
a right, question, or fact distinctly put in issue, and
directly determined by a court of competent jurisdiction,
as a ground of recovery, cannot be disputed in a
subsequent suit between the same parties or their privies
. . . . This general rule is demanded by the very object
for which civil courts have been established, which is to
secure the peace and repose of society by the settlement
of matters capable of judicial determination.
Its
enforcement is essential to the maintenance of social
order; for the aid of judicial tribunals would not be
invoked for the vindication of rights of person and
property if, as between parties and their privies,
conclusiveness did not attend the judgments of such
tribunals in respect of all matters properly put in
issue, and actually determined by them.
Southern Pacific Railroad Co. v. United States, 18 S. Ct. 18, 27
(1897) .

"Res judicata is appropriate if:

1) the parties to both

actions are identical (or at least in privity); 2) the judgment in
the first action is rendered by a court of competent jurisdiction;
3) the first action concluded with a final judgment on the merits;
and 4)
suits."

the same claim or cause of action is

involved in both

Ellis, 211 F.3d at 937 (citation omitted).
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"[G]enerally a res judicata contention cannot be brought in a
motion to dismiss; it must be pleaded as an affirmative defense."
Test Masters, 428 F.3d at 570 n.2 (5th Cir. 2005)
may be appropriate if a
based

on

the

facts

But dismissal

successful affirmative defense appears

pleaded

and

Hodgkins, 305 F. App'x 224, 227-28

judicially noticed.
(5th Cir. 2008)

Hall

v.

(citing Kansa

Reinsurance Company, Ltd. v. Congressional Mortgage Corporation of
Texas, 20 F.3d 1362, 1366 (5th Cir. 1994)).

Because the court can

make its determination based upon only the pleadings and judicially
noticeable facts and filings from McPherson I,

a decision under

Rule 12(b) (6) is appropriate.
III.

Application

The court takes judicial notice of the pleadings and orders in
McPherson I.

Both the parties 6 and causes of action 7 asserted in

McPherson I are identical to those in the present action.

The

court must

had

therefore

determine

whether the previous

court

jurisdiction and rendered a final judgment on the merits.
A.

Judgment by a Court of Competent Jurisdiction

Federal courts are courts of limited jurisdiction with "only
the authority endowed by the Constitution and that conferred by

6

Compare Plaintiff's First Amended Petition in McPherson I,
Docket Entry No. 1-1, pp. 40-42 to Plaintiff's First Amended
Petition, Docket Entry No. 1-1, pp. 69-70.
7

Compare Plaintiff's First Amended Petition in McPherson I,
Docket Entry No. 1-1, pp. 72-90 to Plaintiff's First Amended
Petition, Docket Entry No. 1-1, pp. 104-22.
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Congress."

Save the Bay,

Inc.

v.

United States Army,

639 F.2d

1100, 1102 (5th Cir. 1981).

The party asserting federal subject-

matter

the

jurisdiction

bears

requirement has been met.

burden

of

proving

that

this

B., Inc. v. Miller Brewing Co., 663 F.2d

545, 549 (5th Cir. 1981).
In McPherson I

Defendants removed to federal court on the

basis of diversity jurisdiction. 8

Federal courts have original

jurisdiction over civil actions where the parties are diverse and
the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs.

28 U.S.C.

§

1332(a)

The party

asserting jurisdiction must show that both requirements are met.
First, the removing party must distinctly and affirmatively allege
the citizenship of the parties.
F.3d 912, 919 (5th Cir. 2001).

Howery v. Allstate Ins. Co., 243
Defendants did so in McPherson I,

and Plaintiff did not dispute those allegations.

9

The removing

party must also show that the amount in controversy requirement is
met.

"[W]hen the validity of a contract or a right to property is

called into question in its entirety,
controls

the

amount

in

controversy."

Insurance Corp., 296 F.2d 545, 547-48

the value of the property
Waller

v.

Professional

(5th Cir. 1961).

A common

method of establishing the value of real property is to look to a

8

Defendants also asserted federal question jurisdiction, but
since the court concludes that they met their burden to establish
diversity jurisdiction, no further inquiry is necessary.
9

Defendants' Notice of Removal in McPherson I, Docket Entry
No. 1, pp. 3-6.
-6-

Statin v. Deutsche Bank

county appraisal district's assessment.
Nat.

Trust

Co.,

599

F.

App'x

545,

546-47

(5th

Cir.

2014).

Reasonable bases for valuing properties include "purchase price,
market value, or outstanding principal and interest."
GMAC Mortgage,

L.L.C.,

737 F.3d 338, 341

Farkas v.
This

(5th Cir. 2013).

court considers market value to be the preferred method.
Govea

g_,_g_,_,

v.

JPMorgan

Chase

Bank,

N.A.

I

Civil

Action

No. H-10-3482, 2010 WL 5140064, at *2-4 (S.D. Tex. Dec. 10, 2010).
Defendants attached to their Notice of Removal in McPherson I a
Harris County Appraisal District Summary showing that the market
value of the Property at issue exceeded $75,000 as of the time of
filing.

10

Defendants

met

their

burden

of

establishing

that

diversity jurisdiction existed, and the court in McPherson I was
therefore a court of competent jurisdiction.
B.

Final Judgment on the Merits

Generally,

a federal court's dismissal with prejudice is a

final judgment on the merits for res judicata purposes.
Direct,

LLC v.

Dyson,

Inc.,

560 F.3d 398,

401

See Oreck

(5th Cir.

2009)

(citing Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284
n.8

(5thCir. 1993)).

It is well established that Rule 12 (b) ( 6)

dismissals are made on the merits.

Federated Dep't. Stores, Inc.

v.

n.3

Moitie,

101 S.

Ct.

2424,

2428

Bullington, 67 S. Ct. 657, 661 (1947)).

10

(1981)

(citing Angel v.

The court in McPherson I

Harris County Appraisal District Summary in McPherson I,
Docket Entry No. 1-2.
-7-

granted Defendants' Rule 12(b) (6) motion and dismissed the action
with prejudice, thereby rendering a final judgment on the merits. 11
IV.

Conclusion and Order

For the reasons explained above,

the court concludes that

Plaintiff's claims are barred by the doctrine of res

judicata.

Defendants' Motion to Dismiss Plaintiff's Complaint (Docket Entry
No. 3) is therefore GRANTED.
SIGNED at Houston, Texas, on this 30th day of December, 2016.

SIM LAKE
UNITED STATES DISTRICT JUDGE

11

Amended Order Granting Motion to Dismiss in McPherson I,
Docket Entry No. 11.
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