Sissom v. Countrywide Home Loans ( 2021 )

Case: 20-50392 Document: 00515704337 Page: 1 Date Filed: 01/12/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-50392 January 12, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Susan Sissom,
Plaintiff—Appellant,
versus
Countrywide Home Loans, Incorporated, doing business as
America’s Wholesale Lender, Incorporated; The Bank
of New York Mellon, formerly known as The Bank of New
York; Malcolm Cisneros, a Law Corporation; MTC
Financial, Incorporated, doing business as Trustee
Corporations,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-949
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-50392 Document: 00515704337 Page: 2 Date Filed: 01/12/2021
This appeal concerns Susan Sissom’s renewed attempt to prevent
foreclosure of her Texas home. She appeals the district court’s denial of her
motion to remand to state court and its dismissal of her case. We affirm.
I
In 2006, Sissom obtained a mortgage from Countrywide Home Loans,
Inc., d/b/a America’s Wholesale Lender (“Countrywide”), which was
subsequently assigned to the Bank of New York Mellon (“BNYM”) (we
refer to BNYM and Countrywide together as the “Bank Defendants”). In
2017, Sissom defaulted and was informed her home would be sold in
foreclosure. Seeking to block the sale, Sissom brought suit in Texas state
court against the same defendants as here. Her case was removed to federal
court. See Sissom v. Countrywide Home Loans, Inc., No. 1:17-CV-449, 2017
WL 8182807 (W.D. Tex. Aug. 17, 2017). After Sissom unsuccessfully
challenged the district court’s jurisdiction, the court dismissed her suit for
failure to state a claim. She appealed, challenging “only the district court’s
exercise of jurisdiction,” and we affirmed. Sissom v. Countrywide Home Loans,
Inc., 772 F. App’x 75, 76 (5th Cir. 2019).
Sissom then filed the instant suit in Texas state court. The Bank
Defendants again removed to federal court and Sissom moved to remand,
pointing to a non-diverse defendant, G. Tommy Bastian, a Texas attorney
listed as trustee on the original deed of trust. The Bank Defendants opposed
remand, contending Bastian was improperly joined. They also moved to
dismiss. Adopting the magistrate judge’s recommendation, the district court
ruled Bastian was not a proper party and so denied the motion to remand.
The court then granted the motion to dismiss. Sissom appeals. 1 We review
1
The other named defendants, Malcolm Cisneros and MTC Financial, Inc., d/b/a
Trustee Corporations, are successor, substitute trustees named by the mortgage servicer
acting on behalf of BNYM. They successfully moved, independent of the Bank Defendants,
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No. 20-50392
both rulings de novo. See Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 744 (5th
Cir. 2010); Kling Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir.
2009).
II
We begin with the motion to remand because it concerns jurisdiction.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-97 (1998). Sissom
correctly notes that the presence of “one [opposing] party from the same
state [as the plaintiff] is enough to defeat diversity jurisdiction.” See, e.g.,
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (28 U.S.C. § 1332 mandates
“complete diversity between all plaintiffs and all defendants”). The non-
diverse defendant, however, must have been “properly joined.” Smallwood
v. Illinois Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc).
Otherwise, “the court may disregard the citizenship of that defendant,
dismiss the non-diverse defendant from the case, and exercise subject matter
jurisdiction over the remaining diverse defendant[s].” Flagg v. Stryker Corp.,
819 F.3d 132, 136 (5th Cir. 2016).
The district court correctly applied that principle here. The court
reasoned that Sissom had not alleged “any cause of action against Bastian”
or even that “Bastian [had] committed any act of wrongdoing.” This
establishes that Bastian was not “properly joined” for purposes of diversity
jurisdiction. See Smallwood, 385 F.3d at 573 (improper joinder is shown by the
“inability of the plaintiff to establish a cause of action against the non-diverse
party in state court”) (quotation marks omitted); see also Flagg, 819 F.3d at
136 (“Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is
to dismiss Sissom’s suit, invoking a provision of the Texas Property Code, and have
defended dismissal on that basis in briefing before this Court. We need not address their
arguments, however, because Sissom has not challenged the propriety of their dismissal.
3
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no improper joinder.”). As the court observed, “district courts . . . routinely
disregard the citizenship of trustees in foreclosure cases when the underlying
complaint alleges no wrongdoing by the trustees.”2 The district court
therefore correctly denied Sissom’s motion to remand.
We turn to the merits. As relevant here, the district court ruled
Sissom’s suit was barred by res judicata. The court reasoned that Sissom
“appear[ed] to be rehashing her previous allegations,” which the court had
rejected as legally insufficient in Sissom’s prior case. See Sissom v.
Countrywide Home Loans, Inc., No. 1:17-CV-449, (W.D. Tex. Mar. 26, 2018)
(Order, ECF. No. 21) (“Even under the liberal reading afforded to pro se
plaintiffs, the Court is unable to infer a cause of action from the facts alleged
in the proposed amended complaint.”). The district court was correct.
Sissom seeks to relitigate the same claims, against the same parties, involving
the same factions, after receiving a final judgment on the merits of those
claims (which she failed to appeal). See Barr v. Resolution Tr. Corp. ex rel.
Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992) (“Res judicata . . .
prevents the relitigation of a claim or cause of action that has been finally
adjudicated, as well as related matters that . . . should have been litigated in
the prior suit.”).3 Sissom offers no reason why res judicata does not bar her
claims here.
2
See, e.g., Guerra v. Wells Fargo Bank, No. SA-15-CV-763, 2015 WL 9451083, at *3
(W.D. Tex. Dec. 21, 2015); Klein v. Wells Fargo Bank, N.A., No. A-14-CA-154, 2014 WL
1342869, at *2 & n.4 (W.D. Tex. Apr. 3, 2014); Eisenberg v. Deutsche Bank Tr. Co. Americas,
No. SA-11-CV-384, 2011 WL 2636135, at *2 (W.D. Tex. July 5, 2011).
3
As a matter of federal common law, the preclusive effect of a prior decision issued
by a federal court sitting in diversity is governed by res judicata principles borrowed from
the substantive law of the State in which the reviewing federal court sits. Semtek Int’l Inc.
v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001); see also Am. Home Assururance Co. v.
Chevron, USA, Inc., 400 F.3d 265, 272 n.20 (5th Cir. 2005).
4
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Accordingly, the district court’s judgment is AFFIRMED.
5