Vazquez et al v. Selene Finance, L.P. et al
MEMORANDUM AND ORDER Defendants Motion for Summary Judgment, Motion forJudgment on the Pleadings [Doc. # 4] is GRANTED as unopposed and this case isDISMISSED WITH PREJUDICE. It is furtherORDERED that any existing injunctions precluding foreclosure on the subjectproperty are VACATED. It is furtherORDERED that the request for sanctions is DENIED, but Plaintiffs arecautioned that they may not file any future lawsuits involving the execution andenforcement of the Promissory Note and Deed of Trust at issue in this lawsuit. Anyfuture lawsuits may result in the imposition of sanctions against Plaintiffs personallyand against their counsel, Arturo R. Eureste.(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
RAFAEL F. VAZQUEZ, et al.,
SELENE FINANCE, L.P., et al.,
September 26, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1793
MEMORANDUM AND ORDER
This case is before the Court on Defendants’ Motion for Summary Judgment,
Motion for Judgment on the Pleadings and Request for Sanctions (“Motion”) [Doc.
# 4]. Absent any opposition from Plaintiffs, the Motion is granted.
In September 2008, Plaintiff Rafael Vasquez (“Borrower”) executed a
Promissory Note in the amount of $246,163.00. He and his wife, Plaintiff Norma
Vazquez, executed a Deed of Trust establishing a first lien on certain real property in
Katy, Texas. Selene Finance, L.P. (“Selene”) is the current mortgagee, record
assignee of the Deed of Trust, and holder of the Promissory Note.
Plaintiff failed to make the loan payment due November 1, 2010, and he has
made no subsequent loan payments.
On October 22, 2015, Selene sent Notices of Default to Borrower. The default
was not cured and, on June 13, 2016, Selene sent Notices of Acceleration and
Foreclosure to Borrower.
This is the third lawsuit filed by Borrower in an attempt to prevent foreclosure
without making any loan payments. In the most recent lawsuit, Final Judgment
awarding summary judgment in favor of Defendants was entered May 31, 2017. See
Final Judgment in Civil Action No. H-16-2000. Plaintiffs filed this lawsuit in Texas
state court on June 5, 2017. Defendants removed the lawsuit to federal court and filed
the pending Motion.
By Order [Doc. # 6] entered August 25, 2017, the Court ordered Plaintiffs to
file any opposition to Defendants’ Motion by August 31, 2017. Plaintiffs failed to file
any opposition by that deadline or at any time before September 14, 2017. On that
date, recognizing that the courthouse was closed on August 31, 2017, the Court
ordered Plaintiff to file any opposition to the Motion by September 21, 2017. See
Order [Doc. # 8]. The Court cautioned Plaintiffs that failure to respond as directed
would result in dismissal of this lawsuit and could result in the imposition of
sanctions. See id. Plaintiffs have neither filed any opposition to the Motion nor
requested additional time to respond.
Defendants argue that the Final Judgment entered May 31, 2017, precludes this
lawsuit under the doctrine of res judicata. The doctrine of “res judicata” precludes
multiple lawsuits on the same causes of action, conserves judicial resources, and
prevents inconsistent decisions. See United States v. Davenport, 484 F.3d 321, 32526 (5th Cir. 2007). Under the doctrine, “a final judgment on the merits bars further
claims by parties or their privies based on the same cause of action.” Id. at 326. Res
judicata bars a claim that has been previously adjudicated when four requirements are
satisfied: (1) the parties in the later case are identical to, or in privity with, the parties
of the prior case; (2) the prior judgment was rendered by a court of competent
jurisdiction; (3) the prior case concluded with a final judgment on the merits; and
(4) the same claim or cause of action is involved in both cases. Id. Here, it is clear
that the parties to this case and to the prior case are the same, that the Southern
District of Texas is a court of competent jurisdiction, and the prior case ended with a
final judgment on the merits.
In connection with the fourth element, whether the two suits involve the same
claim or cause of action, the Court applies the “transactional test.” Id. Under this test,
the focus is on whether the two cases are based on “the same nucleus of operative
facts.” Id. (citing In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999)). “The
nucleus of operative facts, rather than the type of relief requested, substantive theories
advanced, or types of rights asserted, defines the claim.” Id. (citing Agrilectric Power
Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663, 665 (5th Cir. 1994)). “If the cases are
based on the same nucleus of operative facts, the prior judgment’s preclusive effect
‘extends to all rights the original plaintiff had 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 (5th Cir.
In this case, all of the claims asserted in this case, as well as those asserted in
the prior lawsuit, are based on the execution and enforcement of the Promissory Note
and Deed of Trust. Indeed, the allegations in the Original Petition in this case are
virtually identical to those presented in the Original Petition filed in the prior lawsuit.
As a result, the two lawsuits are based on the same nucleus of operative facts,
satisfying the fourth element of the res judicata analysis. As a result, this lawsuit is
barred by the res judicata effect of the prior lawsuit.
CONCLUSION AND ORDER
Defendants argue that this lawsuit is barred by the res judicata effect of the
prior lawsuit that concluded by Final Judgment entered May 31, 2017. Plaintiffs have
presented no argument or legal authority to the contrary. For the reasons set forth
above, it is hereby
ORDERED that Defendants’ Motion for Summary Judgment, Motion for
Judgment on the Pleadings [Doc. # 4] is GRANTED as unopposed and this case is
DISMISSED WITH PREJUDICE. It is further
ORDERED that any existing injunctions precluding foreclosure on the subject
property are VACATED. It is further
ORDERED that the request for sanctions is DENIED, but Plaintiffs are
cautioned that they may not file any future lawsuits involving the execution and
enforcement of the Promissory Note and Deed of Trust at issue in this lawsuit. Any
future lawsuits may result in the imposition of sanctions against Plaintiffs personally
and against their counsel, Arturo R. Eureste.
SIGNED at Houston, Texas, this 26th day of September, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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