United States District Court, W.D. Texas, San Antonio Division
ANDRES M. HOLLIDAY, ARACELI M. HOLLIDAY, MICHAEL JOSEPH KEARNS, Plaintiffs,
SELECT PORTFOLIO SERVICING, INC, WELLS FARGO BANK, NA, MORTGAGE ELECTRONIC SERVICING, UNKNOWN DEFENDANTS, 1-10, Defendants.
MEMORANDUM OPINION AND ORDER
PULLIAM, UNITED STATES DISTRICT JUDGE.
the Court is the above-captioned action in which Andres M.
Holliday, Araceli M. Holliday, and Michael Joseph Kearns are
Plaintiffs and Mortgage Electronic Servicing, Select
Portfolio Servicing, Inc., and Wells Fargo Bank, N.A. are
named as Defendants.
court notes that the original petition and attachments in
this action are substantially similar to a complaint filed by
Andres M. Holliday and Araceli M. Holliday in this court
under No. 5:11-CV-1133. In the previous action, Plaintiffs
alleged causes of action under the RICO Act, Truth in Lending
Act, Regulation Z, and RESPA. Plaintiffs now assert that the
same facts support a cause of action for trespass to try
title, damages under the Texas Deceptive Trade Practices Act,
and for declaratory judgment. Because the claims in
Plaintiffs' prior action were dismissed with prejudice,
the claims asserted here are clearly barred by res judicata.
Procedural History: The Present Action
February 15, 2019, Plaintiffs filed a petition in the 57th
Judicial District Court of Bexar County, Texas, alleging they
are the owners of property located at 6629 Kings Crown East,
San Antonio, Texas 78233. ECF No. 1-4. The petition named as
Defendants Mortgage Electronic Servicing
(“MERS”), Select Portfolio Servicing, Inc.
(“Select”), Wells Fargo Bank, N.A., and McCarthy
& Holthus, LLP (“McCarthy”). Plaintiffs'
petition seeks to prevent foreclosure of the property,
alleging claims for trespass to try title and declaratory
judgment. Id. On February 28, 2019, a temporary
restraining order was issued in state court, preventing the
sale of the property. ECF No. 1-7; ECF No. 1-8.
March 8, 2019, Defendants removed the action to this Court on
the basis of diversity jurisdiction. ECF No. 1. On March 20,
2019, Plaintiffs timely filed their original motion to remand
(ECF No. 3), then filed an amended motion to remand on April
18, 2019 (ECF No. 18), and a supplemental motion to remand on
April 29, 2019 (ECF No. 21). Defendants MERS, Select, and
Wells Fargo filed a response in opposition to the first two
motions to remand on April 25, 2019 (ECF No. 20). On March
27, 2019, Defendant McCarthy filed a motion to dismiss (ECF
No. 8). Plaintiffs filed a response in opposition on April 8,
2019 (ECF No. 13); McCarthy filed a reply on April 10, 2019
(ECF No. 14). Plaintiffs also filed motions for judicial
notice and for sanctions (ECF Nos. 21, 22, 23).
29, 2019, the Honorable David A. Ezra denied Plaintiffs'
Amended Notice of Fraudulent Removal and Demand to Remand to
State Court (ECF Nos. 3, 18); granted McCarthy's Motion
to Dismiss (ECF No. 8); denied Plaintiffs' Supplemental
Motion for Remand (ECF No. 21), Motion for Judicial Notice
and for Sanctions (ECF No. 22), and Second Demand for
Judicial Notice (ECF No. 23). Judge Ezra's Order
cautioned Plaintiffs against filing frivolous or superfluous
filings, warning that the Court will consider sanctions and
entertain a motion by Defendants for fees and costs in
responding to Plaintiffs' frivolous filings. ECF No. 26.
22, 2019, the remaining named Defendants filed their Motion
for Judgment on the Pleadings (ECF No. 33). This motion was
followed by Plaintiffs' pro se Independent Action
Complaint | Complaint for Declaratory Judgment, docketed as
pro se Motion for Declaratory Judgment (ECF No. 38);
Defendants' Motion to Strike, Motion to Dismiss (ECF No.
41); Plaintiffs' pro se Demand to Take Judicial Notice
and Demand for Immediate Order/Judgment, docketed as a motion
(ECF No. 44); and Plaintiffs' pro se Demand for Felony
Criminal Indictment, for Aggravated Perury, (sic) Fraud on
the Court, and Conspiracy to Commit the Above, docketed as a
motion (ECF No. 45).
action was reassigned to the undersigned on August 12, 2019
(ECF No. 42).
may dismiss an action “sua sponte on res judicata
grounds . . . in the interest of judicial economy where both
actions were brought before the same court.”
McIntyre v. Ben E. Keith Co., 754 Fed.Appx. 262,
264-65 (5th Cir. 2018) (per curiam) (quoting Mowbray v.
Cameron Cty., 274 F.3d 269, 281 (5th Cir. 2001)).
“[I]f a court is on notice that it has previously
decided the issue presented, the court may dismiss the action
sua sponte, even though the defense has not been
raised.” Arizona v. California, 530 U.S. 392,
412 (2000). 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. Miss. Bd.
of Bar Admissions, 394 Fed.Appx. 172, 175 (5th Cir.
judicata bars “the litigation of claims that either
have been litigated or should have been raised in an earlier
suit.” Test Masters Educ. Servs., Inc. v.
Singh, 428 F.3d 559, 571 (5th Cir. 2005). 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. Id. As to the fourth condition,
“[t]he critical issue is whether the two suits are
based on the ‘same nucleus of operative
facts.'” Id. In other words, the fourth
condition is met if the claims could or should have been
brought in the first action. Nilsen v. City of Moss
Point, 701 F.2d 556, 561 (5th Cir. 1983). “True
res judicata bars recovery when a party seeks to
relitigate the same facts even when the party argues a novel
legal theory.” Snow Ingredients, Inc. v. SnoWizard,
Inc., 833 F.3d 512, 522 (5th Cir. 2016).
the parties common to this action and the previous action are
Andres M. Holliday, Araceli M. Holliday, and Wells Fargo
Bank, N.A. The parties named in this action that were not
named in the previous action are Defendants Mortgage
Electronic Servicing and Select Portfolio Servicing, and
Plaintiff Michael Joseph Kearns. As the mortgage holder and
mortgage servicer, Wells Fargo Bank, N.A. and Select
Portfolio Servicing are in privity for res judicata purposes.
“The relationship between a mortgage holder, a mortgage
servicer, and a mortgage lender's nominee is generally
sufficient to establish the privity needed for res
judicata.” Bellot v. Wells Fargo Bank, N.A.,
No. CIV.A. H-13-2014, 2014 WL 2434170, at *2 (S.D. Tex. May
29, 2014) (citing Maxwell v. U.S. Bank, N.A., 544
Fed.Appx. 470, 473 (5th Cir. 2013)). ...