Wicker, Jr. v. Seterus, Inc.

Filing 50

ORDER GRANTING 44 Motion to Reopen Case, and shall again be Closed after entry of this Order. Signed by Judge David Briones. (fm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
THOMAS GEORGE WICKER, JR.,
Plaintiff/Counter-Defendant,

In.
%.J

§
§

I

§

v.

§

EP-17-CV-99-DB

§

SETERUS, INC.,
Defendant/Counter-Plaintiff.

§
§
§
§

SETERUS, INC.,

Third-Party Plaintiff,

§
§
§

v.

§
§

ROCIO P. WICKER et at.,
Third-Party Defendants.

§

§

MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant/Counter-Plaintiff/Third-Party

Plaintiff Seterus, Inc.'s' ("Defendant") "Motion to Reopen and Enjoin Further Litigation by
Thomas George Wicker, Jr." ("Motion") filed in the above-captioned case on December 5, 2019.
ECF No. 44.

Therein, Defendant asks the Court to use its authority under the All Writs Act to

reopen and enjoin Plaintiff/Counter-Defendant Thomas George Wicker, Jr. ("Plaintiff') from
filing any additional lawsuits seeking to avoid foreclosure and sale of his subject real property.
Id. at 1-2.

On December 19, 2019, Plaintiff filed his Response arguing that no subject matter

jurisdiction exists in this lawsuit because in February 2019 when Defendant merged with
Nationstar, a Texas-based company, it was no longer diverse from Plaintiff, a Texas citizen.
Resp. 2-3, ECF No. 46.

,)

On December 26, 2019, Defendant filed its Reply.

ECF No. 47.

On

I Seterus, Inc. ("Seterus") merged with Nationstar Mortgage, LLC dlb/a Mr. Cooper ("Nationstar") on February 28,
2019 at 11:59 pm. The Certificate of Merger for Nationstar Mortgage, LLC and Seterus, Inc. is filed with the
Delaware Secretary of State under SR 20191557790/File Number 3355698. Certificate of Merger Ex.7-G, at 259260, ECF No. 45. The Court will continue to refer to "Defendant" generally.

December 30, 2019, Plaintiff filed his Reply.
Defendant filed its Surreply.

ECF No. 49.

ECF No. 48.

And on January 6, 2020,

After due consideration, the Court is of the opinion

that Defendant's Motion should be granted.

BACKGROUND
This suit arises from a fifteen-year promissory note ("the note") for $221,000.00
secured by Plaintifrs home, which is located at 6533 Calle Bonita Lane in El Paso, Texas ("the

property") on April 29, 2004.

Pl.'s Original Pet. & Appl. for TRO Ex. B-i, at 2, ECF No. 1-1;

Mot. Ex. A-i, at 3, ECF No. 28.

The instant case is the fourth case that Plaintiff has filed

relating to the attempted foreclosure of the property in connection with this same loan
agreement.2

See Wicker

v.

Bank ofAm., NA. ("Wicker 1"), No. EPi4CV91LPRM, 2014 U.S.

Dist. LEXIS 184476 (W.D. Tex. Aug. 27, 2014); Wicker

v.

BankofAm., NA. ("Wicker I]"), No.

EP-i5-CV-00015-FM, 2015 WL 632096 (W.D. Tex. Feb. 13, 2015); Wicker v. Seterus, Inc., et
al. ("Wicker II]"), No. EP-15-CV-33i-KC, 2016 U.S. Dist. LEXIS 59696 (W.D. Tex. May 5,

2016).

He has lost or nonsuited each prior case, including the instant case ("Wicker IV"), which

was dismissed after this Court granted Defendant's Motion for Final Summary Judgment on

October 4, 2018.

Wicker I, No. EP-14-CV-91-PRM, 2014 U.S. Dist. LEXIS 184476; Wicker II,

No. EP-15-CV-000i5-FM, 2015 WL 632096; Wicker III,No. EP-15-CV-33i-KC, 2016 U.S.
Dist. LEXIS 59696; Wicker IVMem. Op. and Order 1, ECF No. 36.

This Court entered its

Amended Final Judgment on October 26, 2018, dismissing Plaintiffis claims with prejudice and
ordering Defendant or its successors to proceed with foreclosure pursuant to the loan agreement

and the Texas Property Code.

Wicker IV Am. Final J. 2-3, ECF No. 41.

2 For a more detailed description of the procedural history of this case, see this

Order granting Defendant's Motion for Final Summary Judgment.
36.
2

Wicker

Court's Memorandum Opinion and
IVMem. Op. and Order 2-11, ECF No.

The United States Court of Appeals for the Fifth Circuit affirmed the judgment in
Wicker

v.

Seterus, Inc., and its Mandate was filed in this Court on June 24, 2019.

423 (5th Cir. 2019); Mandate Affirming Notice of Appeal 1-2, ECF No. 43.

Defendant proceeded to post the property for sale.

Mot. 5, ECF No. 44.

764 F. App'x

Accordingly,

While the appeal was

pending, Nationstar finalized its acquisition of Defendant on February 28, 2019.

See supra n. 1.

Nationstar is a citizen of Texas.3
On August 26, 2019, shortly before the scheduled sale, Plaintiff once again filed
suit against Defendant in the 327th Judicial District Court of El Paso County, Texas ("the state
court").

Thomas

J

Wicker, Jr.

v.

Nationstar Mortgage, LLC d/b/a Mr. Cooper, Cause No.

2019-DCV-3213; see Pl.'s Original Pet. Ex. 6-A, at 188, ECF No. 45-1.

The facts giving rise to

the causes of action asserted in the state court arise out of the same nucleus of operative facts of
the prior suits.

Compare P1's Original Pet. Ex. 6-A, at 189-90, ECF No. 45-1, with Wicker IV

Mem. Op. and Order

2il, ECF No. 36 (describing the factual background of Wicker I-IV).

Plaintiff obtained a Temporary Restraining Order ("TRO") on August 29, 2019, in the state
court, preventing Defendant from foreclosing and posting the property for sale.
at 194, ECF No. 45-1.

TRO Ex. 6-B,

The case was removed to this Court on November 25, 2019, making it

Plaintifrs fifth case regarding the property to make it to federal court.

See Wicker v. Nationstar

Mortgage, LLC d/b/a Mr. Cooper (Wicker V), No. 1 9-cv-00342-DB, ECF No.

1.

The Court agrees with Defendant that Wicker V is a clear indication that Plaintiff
will continue to litigate, despite this matter being litigated fully and finally multiple times.
id.; Mot. 6, ECF No. 44.

See

Defendant's Motion requests that this Court issue an injunction to

enjoin Plaintiff from filing additional lawsuits, either in state or federal court, on the same set of
Neither party cites authority or proof of Nationstar' s citizenship, however, Defendant does not contest it, so the
Court will assume the accuracy of this statement. See Resp. 4, ECF No. 46; see generally Mot., ECF No. 45; Reply,
ECF No. 47; and Surreply, ECF No. 49.
3

3

operative facts related to the note and/or the property.

Mot. 6, ECF No. 44.

The Court will

grant Defendant's Motion.

STANDARD
Pursuant to the All Writs Act, a Court may employ equitable remedies to prevent
the frustration of its orders.

28 U.S.C.

§

1651 ("The Supreme Court and all courts established

by Act of congress may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.").
With regard to enjoining state-court actions, the broad right to issue "all writs

necessary" is tempered by three exceptions under the Anti-Injunction Act, which permits
injunctions if(1) the injunction is expressly authorized by Congress, (2) the Court is acting in aid

of its jurisdiction, or (3) the Court is acting to protect or effectuate its judgments. 28 U.S.C.

§

2283.

The third of these exceptions, which is also known as the "re-litigation"
exception, is at issue here.

Mot. 6, ECF No. 44.

The purpose of the re-litigation exception is

to "to prevent state litigation of an issue that previously was presented to and decided by the

federal court."

Chick Kam Choo

v.

Exxon Corp., 486 U.S. 140, 147 (1988).

In determining

whether to apply the re-litigation exception, courts employ a four-part test: (1) parties in the later

action must be identical to or in privity with the parties in the previous action; (2) judgment in
the prior action must have been rendered by a court of competent jurisdiction; (3) the prior action

must have concluded with a final judgment on the merits; and (4) the same claim or cause of
action must be involved in both suits.

Moore

(5th Cir. 2009) (citing New York Lfe Ins. Co.

v.

v.

State Farm Fire & Cas. Co., 556 F.3d 264, 273

Gillispie, 203 F.3d 384, 387 (5th Cir. 2000)).

The test for the re-litigation exception is the same test used to determine collateral

4

estoppel and resjudicata.
2003).

Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 676 (5th Cir.

Notably, Plaintiff's claims in this action were dismissed on resjudicata grounds.

Wicker IVMem. Op. and Order 13, ECF No. 36

ANALYSIS
Here, Wicker V falls within the re-litigation exception of the Anti-Injunction Act.

And injunction is the proper remedy.
1.

Defendant Meets All Four Prongs Under the Re-Litigation Exception.
First, Plaintiff and

Wicker IVand Wicker

V.

Defendant4

are identical parties or parties in privity in both

Compare Pl.'s Original Pet. Ex. 6-A, at 189-90, ECF No. 45-1, with
Second, this is a court of competent jurisdiction

Wicker IVMem. Op. and Order 1, ECF No. 36.

because diversity jurisdiction was not lost when Nationstar acquired Seterus.

Plaintiff attempts to

argue that subject matter jurisdiction no longer exists because Nationstar, which now owns

Seterus, is not diverse from Plaintiff, but it has long been the case that the jurisdiction of the court
depends upon the state of things at the time of the action brought. Freeport-McMoRan, Inc.

v.

K

NEnergy, Inc., 498 U.S. 426, 428-30 (1991); see also Grupo Dataflux v. Atlas Global Grp., L.P.,
541 U.S. 567,

569-70 (2004).
Third, this Court's Amended Final Judgment was a final decision on the merits

ending Wicker IV and affirmed by the Fifth Circuit. Wicker IV Am. Final J. 2-3, ECF No. 41;
Wicker, 764 F. App'x at 423.

Plaintiff admits as much when it belatedly attempts to void this

Court's final judgment under Federal Rule of Civil Procedure 60(b)(3) and argues that the
one-year time limit should be equitably tolled because of Defendant's allegedly unethical
behavior in failing to notify Plaintiff and the Fifth Circuit of the change in ownership.
7, ECF No. 46.
4 See

Resp.

6-

However, Plaintiff was put on notice of the change of ownership when it was

Certificate of Merger of Seterus and Nationstar. Ex.7-G, at 259-260, ECF No.
5

45.

informed that service changed from Seterus to Nationstar on March 13, 2019.
at 248, ECF No. 45-1.

See Notice

Ex. 7-F,

Yet, Plaintiff took no effort to file a Rule 60(b)(3) Motion at that time.

Instead, Plaintiff allowed the Court of Appeals to rule on his appeal, which it did on April 5, 2019,

without taking any action.

See

Wicker, 764 F. App'x 423. Plaintiff failed to act even after the

Court of Appeals issued its mandate after affirming this Court's Amended Final Judgment, which

was issued on June 20, 2019, and filed in this Court on June 24, 2019. ECF No. 43.

Furthermore, even if Plaintiff was not on notice, Defendant was not required to
notify Plaintiff of the change in ownership. Federal Rule of Civil Procedure 25(c) clearly states in

relevant part that "[i]f an interest is transferred, the action may be continued by or against the
original party unless the court, on motion, orders the transferee to be substituted in the action or

joined with the original party." And specifically, in reference to corporate mergers, Rule 25 does
not require the substitution of the successor-by-merger into the suit.

Wilson

v.

Deutsche Bank

Trust Co. Ams., No. 3:18-CV-0854-D, 2019 U.S. Dist. LEXIS 193413, *9 (N.D. Tex. Nov. 7,

2019)

(citing FDIC

v.

SLE,

Inc.,722 F.3d 264, 270 (5th Cir. 2013) (holding that because of "Rule

25's wholly permissive terms," a plaintiff-transferee is "not required under Rule 25(c) and (a)(3) to
substitute as a transferee").

With respect to the instant proceedings, Seterus was the

the time of the Court's Amended Final

servicer5

at

Judgmentthe merger occurred later while the action was

pending on appeal. As Rule 25 allows an action to remain pending against a party who merges
into another company during the litigation, the claims by Plaintiff against Seterus could remain

5 In its Motion for Summary Judgment filed in this suit on January 31, 2018, Seterus clearly indicated that its standing
to pursue foreclosure was in its role as the servicer for the owner of the subject mortgage loan, Fannie Mae. To quote
from the Declaration of Seterus representative Olivia Davis in support of Seterus' Motion for Summary Judgment,
"Fannie Mae is the current owner of the Note and beneficiary of the Deed of Trust. Seterus is currently the servicer
for Fannie Mae with respect to the Loan." See ECF No. 28-1, at 4, ¶ 6. Seterus was thus clear that its standing to
foreclose was in its relationship as Fannie Mae's servicer. Ownership of the subject loan has not changedonly the
servicer from Seterus to Nationstar.

pending against Seterus, and Seterus could properly remain as the complaining party in the
foreclosure action. See id.

Finally, the fourth prong of the relitigation exception is met because the claims and
causes of action presently asserted in the Wicker V were already decided in Wicker IV. See
Wicker IVOriginal Pet. Ex. 5-A, at 2, ECF No. 45-1, and Wicker VOriginal Pet. Ex. 6-C, at 198,

ECF No. 45-1. Plaintiff includes a "new" allegation in Wicker V that Defendant improperly

charged for flood insurance.

Wicker V Original Pet. Ex. 6-C, at 205, ECF No. 45-1. Plaintiff

offers no specific facts or evidence tending to support this allegation that charges were in fact

made and if so, were improper. See generally id. Regardless, this Court entered an order for

foreclosure to proceed pursuant to the Deed of Trust and Texas Property Code, and Plaintiffs
belated attempt to avoid this with "new" allegations involving flood insurance charges is improper
and any alleged complaint has been waived as untimelywhich Plaintiff acknowledges in his

Response. Wicker IV Am. Final J. 2-3, ECF No. 41; See Resp. 6, ECF No. 46 (explaining that
Fed. R. Civ. P. 60(b)(3) motion for relief from final judgment should be brought within a year

but that they should be entitled to equitable tolling6).

Thus, with all four prongs of the

re-litigation exception met, this Court has the power under the All Writs Act to enjoin Plaintiff
from further prosecuting Wicker V and from filing any future suits regarding these facts in state
and federal court.
2.

Injunction Is Proper.
An injunction is the proper remedy to effectuate this Court's judgment. The Fifth

Circuit has held that an injunction is appropriate where the following four factors are present: (1)
success on the merits; (2) a failure to grant the injunction will result in irreparable injury; (3) said

injury outweighs any damage that the injunction will cause the opposing party; and (4) the
6 See supra 5-6

(explaining why equitable tolling is not justified in this case).
7

injunction will not disserve the public interest.

VRC,

LLC v.

City of Dallas,

460 F.3d 607, 611

(5th Cir. 2006).
First, Defendant has already twice had success on the merits on resjudicata
grounds, most recently when this Court held that Plaintiff's claims in Wicker IV were precluded
Wicker IVMem. Op. and Order 13, ECF No. 36.

based on his prior suits.

Defendant

successfully prosecuted its counterclaim for foreclosure and this court entered an order for

foreclosure to proceed. Id. As the Fifth Circuit points out, Plaintiff himself admits he breached

the loan agreement, and therefore cannot prevail on a breach of contract claim.

Wicker,. 764 F.

App'x at 423.
Second, Defendant has suffered and will continue to suffer injury, as it has been
forced to expend legal fees defending against Plaintiff's duplicative suits: Wicker Ito now Wicker
V (and these,

the Court notes, do not include the state court actions). Importantly, Plaintiff is

continuously preventing Defendant from selling the property to satisfy the debt Plaintiff owes.
Third, this Court already ordered that sale of the property may proceed, and
foreclosure is inevitable.

Wicker IVMem. Op. and Order 31, ECF No. 36. Plaintiff cannot show

that he will suffer any damage from an injunction, as all future lawsuits on this set of facts will also
be precluded by resjudicata. Fourth, an injunction in fact serves the public interest, as res

judicata is one of the cornerstones of the legal system, ensuring the finality of judgments, the
conservation ofjudicial resources, and the protection of litigants from multiple lawsuits. See

Procter & Gambel Co.

v.

Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004).

CONCLUSION
Plaintiff's efforts to avoid foreclosure are hereby enjoined pursuant to this Court's
power under the All Writs Act.

[1

Accordingly, IT IS HEREBY ORDERED that Defendant/Counter-Plaintiff!
Third-Party Plaintiff Seterus, Inc.'s "Motion to Reopen and Enjoin Further Litigation by Thomas
George Wicker, Jr." is GRANTED.

IT IS FURTHER ORDERED that the above-captioned case is OPENED for the
purposes of this Order but shall again be CLOSED after entry of this Order.

IT IS FINALLY ORDERED that Plaintiff/Counter-Defendant Thomas George
Wicker, Jr. is PERMANENTLY ENJOINED and PROHIBITED from filing any lawsuit in
any federal or state court against any party based on the facts and circumstances surrounding this

action, the property, and/or the loan agreement without first obtaining leave of this Court.

SIGNED this

.ifr7

day of February 2020.

E
SENIO

ONORA LE DAVID BRIONES
UNITED STATES DISTRICT JUDGE