Francoeur v. U.S. Bank National Ass'n , 643 F. App'x 701 ( 2016 )


Menu:
  •                                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                           March 21, 2016
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    MARGRET FRANCOEUR, on behalf of
    herself and all others similarly situated,
    Plaintiff - Appellant,
    v.                                                           No. 15-2016
    (D.C. No. 2:11-CV-00387-JCH-WPL)
    U.S. BANK NATIONAL ASSOCIATION;                               (D. N.M.)
    CHARTER BANK; BEAL FINANCIAL
    CORPORATION; LITTLE &
    DRANTTEL, P.C.,
    Defendants - Appellees.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
    _________________________________
    Margret Francoeur appeals the district court’s dismissal of her claims.
    Exercising jurisdiction pursuant to 
    28 U.S.C. § 1291
    , we affirm.
    I
    Francoeur’s claims relate to state-court foreclosure proceedings on her home in
    Hobbs, New Mexico. Her mortgage originated with Charter Bank (Santa Fe) (“Old
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    submitted without oral argument. This order and judgment is not binding precedent,
    except under the doctrines of law of the case, res judicata, and collateral estoppel. It
    may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
    and 10th Cir. R. 32.1.
    Charter Bank”) and was later assumed by defendant U.S. Bank National Association
    (“U.S. Bank”) when the Office of Thrift and Supervision closed Old Charter Bank in
    January 2010. The Federal Deposit Insurance Corporation (“FDIC”) was appointed
    receiver and transferred some, but not all, of Old Charter Bank’s assets to defendant
    Charter Bank (Albuquerque) (“New Charter Bank”). Defendant Beal Financial
    Corporation (“Beal”) is the parent corporation of New Charter Bank. Defendant
    Little & Dranttel, P.C., is the law firm that began representing U.S. Bank in the
    foreclosure action in March 2010.1
    Old Charter Bank brought a foreclosure action against Francoeur in state court
    and obtained a default judgment. Francoeur’s home was subsequently sold at
    auction. Although she filed a motion to set aside the default judgment and to vacate
    the foreclosure sale, the state courts denied her requests.
    During the pendency of the state court proceedings, Francoeur filed the
    underlying complaint in federal district court. She brought claims for violations of
    the Fair Debt Collection Practices Act (“FDCPA”) and the Truth in Lending Act
    (“TILA”), and pled state-law claims for fraud, unjust enrichment, and breach of
    contract. The district court dismissed the claims against U.S. Bank and Little &
    Dranttel, and entered summary judgment in favor of New Charter Bank and Beal.
    Francoeur filed a motion to alter or amend the judgment, arguing that the court
    should have stayed, rather than dismissed, the action based on abstention principles.
    1
    After the complaint in this suit was filed, Little & Dranttel, P.C., changed its
    name to Rose L. Brand & Associates. We refer to the firm as Little & Dranttel for
    the purposes of this decision.
    2
    The district court granted the motion, reopened the case, and stayed the proceedings.
    After the state proceedings ended, the district court entered judgment in favor of all
    defendants on all claims. Francoeur timely appealed.2
    II
    New Charter Bank and Beal argued in a summary judgment motion that all
    four claims against them were predicated on the incorrect assumption that New
    Charter Bank or Beal was the owner and/or servicer of Francoeur’s loan following
    the FDIC’s takeover of Old Charter Bank. Their motion was supported by two
    affidavits. Francoeur did not respond individually to any of the asserted undisputed
    facts in the motion, nor did she support her response with any factual assertions.
    Instead, she challenged the admissibility of the affidavits and attached an affidavit
    from her attorney requesting discovery pursuant to Fed. R. Civ. P. 56(d). The district
    court rejected both of Francoeur’s arguments and granted summary judgment.
    We review for abuse of discretion a district court’s evidentiary rulings at the
    summary judgment stage, Argo v. Blue Cross & Blue Shield of Kan., Inc., 
    452 F.3d 1193
    , 1199 (10th Cir. 2006), and a district court’s denial of a Rule 56(d) request for
    2
    Our rules require that an appellant “file an appendix sufficient for
    considering and deciding the issues on appeal,” 10th Cir. R. 30.1(B)(1), and if an
    appeal is from an order disposing of a motion, “the motion . . . and any responses and
    replies filed in connection with that motion or pleading must be included in the
    record,” 10th Cir. R. 10.3(D). Francoeur’s appendix does not include many of the
    required documents. Such failures could have resulted in a summary affirmance.
    See Burnett v. Sw. Bell Tel., L.P., 
    555 F.3d 906
    , 909-10 (10th Cir. 2009). But most
    of the documents were included in the defendants’ supplemental appendices and we
    exercised our discretion to view others on the district court’s electronic docket. We
    admonish Francoeur for failing to provide a proper appendix.
    3
    discovery, Ellis v. J.R.’s Country Stores, Inc., 
    779 F.3d 1184
    , 1192 (10th Cir. 2015).
    We review de novo the district court’s grant of summary judgment in favor of New
    Charter Bank and Beal. Ron Peterson Firearms, LLC v. Jones, 
    760 F.3d 1147
    , 1154
    (10th Cir. 2014). Summary judgment is appropriate “if the movant shows that there
    is no genuine dispute as to any material fact and the movant is entitled to judgment as
    a matter of law.” Fed. R. Civ. P. 56(a).
    Francoeur argues that the district court erred in crediting factual assertions
    from the affidavits because they violated Rule 1002 of the Federal Rules of Evidence
    (also known as “the best evidence rule”). But “[a]t the summary judgment stage,
    evidence need not be submitted in a form that would be admissible at trial.” Argo,
    
    452 F.3d at 1199
     (quotation omitted). An affidavit may be used to support a motion
    for summary judgment if it is “made on personal knowledge, set[s] out facts that
    would be admissible in evidence, and show[s] that the affiant . . . is competent to
    testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). We agree with the district
    court that Francoeur’s Rule 1002 argument does not render the affidavits
    inadmissible because the affidavits were based on personal knowledge and were not
    offered to prove the contents of a document.
    Francoeur also contends that the district court erred in failing to grant her Rule
    56(d) request for discovery. “In this circuit, a party seeking to defer a ruling on
    summary judgment under [Rule 56(d)] must provide an affidavit explaining why facts
    precluding summary judgment cannot be presented.” Valley Forge Ins. Co. v. Health
    Care Mgmt. Partners, Ltd., 
    616 F.3d 1086
    , 1096 (10th Cir. 2010) (quotation and
    4
    alteration omitted). The affidavit should address: “(1) the probable facts not
    available, (2) why those facts cannot be presented currently, (3) what steps have been
    taken to obtain these facts, and (4) how additional time will enable the party to obtain
    those facts and rebut the motion for summary judgment.” 
    Id.
     (quotation omitted).
    Because Francoeur’s attorney failed to explain in his Rule 56(d) affidavit what
    attempts he had made to obtain the information he claimed required further
    discovery, we conclude the district court did not abuse its discretion by denying
    further discovery.3
    As noted above, Francoeur failed to address any of New Charter Bank or
    Beal’s factual assertions. The district court accordingly considered defendants’ facts
    undisputed. See Fed. R. Civ. P. 56(e). It further held that New Charter Bank and
    Beal were entitled to summary judgment on the merits of all the claims against them.
    We agree. On Francoeur’s TILA and unjust enrichment claims, the undisputed facts
    showed that New Charter Bank and Beal did not receive any funds as a result of
    Francoeur’s mortgage and foreclosure. On the fraud and breach-of-contract claims,
    the undisputed facts showed that New Charter Bank and Beal played no role
    in Francoeur’s mortgage, and there was no evidence of the existence of a contract.
    3
    Francoeur also complains that the district court’s prior stay of discovery
    prevented her from obtaining information necessary to defend against the summary
    judgment motion. But Francoeur filed a joint motion along with the defendants to
    stay discovery pending resolution of the defendants’ dispositive motions. The
    district court simply granted the parties’ joint motion.
    5
    We thus affirm the district court’s decision to grant summary judgment in favor of
    New Charter Bank and Beal on all of the claims brought against them.4
    III
    Francoeur alleged that U.S Bank and Little & Dranttel violated the FDCPA by
    improperly demanding and collecting excessive attorneys’ fees, late fees, and other
    costs and expenses.5 The district court dismissed this claim. After reopening
    proceedings following the state court action, the district court further determined that
    res judicata barred Francoeur’s FDCPA claim.
    We review de novo the district court’s determination that res judicata applies.
    See MACTEC, Inc. v. Gorelick, 
    427 F.3d 821
    , 831 (10th Cir. 2005). We apply the
    res judicata law of the state from which the judgment issued in determining whether
    that judgment has preclusive effect in federal court. Kremer v. Chem. Constr. Corp.,
    
    456 U.S. 461
    , 482 (1982). Under New Mexico law, “[c]laim preclusion, or res
    judicata, precludes a subsequent action involving the same claim or cause of action.”
    Bank of Santa Fe v. Marcy Plaza Assocs., 
    40 P.3d 442
    , 445 (N.M. Ct. App. 2001). It
    bars not only claims that were raised previously, but also claims that could have been
    raised in the prior action. Kirby v. Guardian Life Ins. Co., 
    231 P.3d 87
    , 105 (N.M.
    4
    Because we affirm the dismissal of these claims on the merits, we need not
    address other rationales offered by the district court.
    5
    Although Francoeur asserted additional claims against these entities, she did
    not include any argument about those claims in her opening brief. We thus do not
    consider those claims. See Bronson v. Swensen, 
    500 F.3d 1099
    , 1104 (10th Cir.
    2007) (arguments not raised in an opening brief are waived).
    6
    2010). A party asserting res judicata must make the following showing with respect
    to the two actions: (1) the same parties or parties in privity; (2) the same subject
    matter; (3) a final decision in the first action; and (4) the first decision was on the
    merits. 
    Id.
     In addition, a party must have had a full and fair opportunity to litigate
    the claim in the first action for res judicata to apply. 
    Id.
    As part of the state court foreclosure proceedings, the state court appointed a
    Special Master to sell Francoeur’s home. After he sold the home, he issued a Special
    Master’s Report of Sale. Based on reports from Old Charter Bank that it had
    incurred or would incur additional charges, the Special Master further requested that
    the court award Old Charter Bank $5,774.57 in additional attorneys’ fees,
    miscellaneous fees, and other costs. The state court confirmed the Special Master’s
    Report and disbursed the fees and costs to Old Charter Bank.6 Although Francoeur
    subsequently filed a motion to set aside the default judgment and vacate the
    foreclosure sale of her home, she did not challenge the award of fees and costs in the
    Special Master’s Report. After holding a hearing on the motion to set aside the
    default judgment, the state court denied the motion and upheld the foreclosure sale.
    The state court of appeals affirmed that decision. See Charter Bank v. Francoeur,
    
    287 P.3d 333
    , 335 (N.M. Ct. App. 2012).
    6
    The district court found that U.S. Bank and Little & Dranttel were in privity
    with Old Charter Bank because they took over servicing of the loan and took action
    in the state-court proceedings to foreclose and collect on Franceour’s mortgage that
    had originated with Old Charter Bank. Their actions in the state-court foreclosure
    proceedings form the basis of Francoeur’s federal suit and she does not challenge the
    district court’s privity determination.
    7
    Francoeur argues that the district court erred in concluding that res judicata
    bars her claims because the subject matter of the state action differed from her
    federal suit and she did not have a full and fair opportunity to litigate her claims in
    state court. We disagree.
    To determine whether two actions involve the same subject matter,
    New Mexico courts apply the test from the Restatement (Second) of Judgments. See
    Brooks Trucking Co. v. Bull Rogers, Inc., 
    128 P.3d 1076
    , 1079 (N.M. Ct. App.
    2006). They “consider (1) the relatedness of the facts in time, space, origin, or
    motivation; (2) whether, taken together, the facts form a convenient unit for trial
    purposes; and (3) whether the treatment of the facts as a single unit conforms to the
    parties’ expectations or business understanding or usage.” 
    Id.
     (quotation omitted).
    The fees that Francoeur challenges in her FDCPA claim are the same fees that
    were awarded by the state court’s final order. The facts related to the reasonableness
    of the fees in the state action are the same facts relevant to Francoeur’s allegation in
    the federal action that defendants violated the FDCPA. We agree with the district
    court that the claims are thus related in time, space, and origin, and form a
    convenient trial unit with the foreclosure action. See In re Richards, 
    986 P.2d 1117
    ,
    1121 (N.M. 1999) (noting that under principles of res judicata “the issue of the
    reasonableness of [a lender’s] attorney’s fees ha[s] to be raised in the foreclosure
    suit”); Moffat v. Branch, 
    118 P.3d 732
    , 739 (N.M. Ct. App. 2005) (stating that parties
    reasonably expect “any and all controversies over attorney fees be litigated fully in
    the . . . court where the lawsuit and settlement are being reviewed”).
    8
    We also agree with the district court that Francoeur had a full and fair
    opportunity to litigate her claim in the state-court foreclosure action. She could have
    raised the reasonableness of the attorney’s fees in her motion to set aside the default
    judgment and vacate the foreclosure sale. Cf. Potter v. Pierce, 
    342 P.3d 54
    , 61 (N.M.
    2015) (concluding that petitioner should have brought his claim in his earlier
    bankruptcy proceeding, and noting that “[e]ven after the entry of [final] judgment,
    Petitioner had the opportunity to move for a new trial, to move to alter or amend the
    judgment, or to appeal”). In her motion, Francoeur challenged the low sale price for
    her home. She learned of the sale price in the same Special Master’s Report that
    awarded additional attorneys’ fees and costs. Francoeur does not offer any
    explanation as to why she neglected to raise the fee issue when she raised other
    challenges to the foreclosure proceedings. We thus affirm the district court’s res
    judicata ruling as to Francoeur’s claims against U.S Bank and Little & Dranttel.7
    IV
    For the foregoing reasons, we AFFIRM the district court’s judgment.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
    7
    Because we conclude that the district court properly dismissed Francoeur’s
    claims on res judicata grounds, we need not address the district court’s alternative
    rationale that the claims lacked plausibility and were subject to dismissal under Fed.
    R. Civ. P. 12(b)(6).
    9