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,
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
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.
-3-
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).
-4-
"[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.
-5-
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.
-8-
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?