Burch v. Freedom Mortgage ( 2023 )

Case: 22-10025 Document: 00516735624 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10025
____________ FILED
May 2, 2023
Juanita Burch, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Freedom Mortgage Corporation,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-3086
______________________________
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant Juanita Burch, proceeding pro se,1 challenges the
district court’s rulings denying her motion to remand and motion to compel,
and granting Defendant-Appellee Freedom Mortgage Corporation’s motion
seeking dismissal of her claims with prejudice. As noted in other opinions
from this court, the history of this and the numerous related cases involving
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
The Latin term “pro se” means “for oneself, on one’s own behalf.” Thus, a party
proceeds pro se when he or she is not represented by an attorney.
Case: 22-10025 Document: 00516735624 Page: 2 Date Filed: 05/02/2023
No. 22-10025
bankruptcy proceedings and properties owned by Burch and/or her husband,
William Burch, is both extensive and convoluted. Indeed, the Bankruptcy
Court for the Northern District of Texas has designated both Burch and her
husband as “vexatious litigants” and prohibited them from filing various
documents related to the properties involved in the 2008 bankruptcy case or
the 2012 bankruptcy case without securing prior authorization from that
court. See Order Designating William Burch as a Vexatious Litigant, In re
Burch, No. 12-46959-mxm7 (Bankr. N.D. Tex. July 10, 2020), ECF No. 824;
Order Designating Juanita Burch as a Vexatious Litigant, In re Burch, No. 12-
46959-mxm7 (Bankr. N.D. Tex. Feb. 2, 2021), ECF No. 966. And this court
has imposed sanctions against Burch’s husband on a number of occasions.
See William Burch v. Select Portfolio Servicing, Inc. (Matter of Burch), No. 20-
11171, 2022 WL 212836, at *1 (5th Cir. Jan. 24, 2022) (unpub.) ($250);
William Burch v. America’s Servicing Co. (Matter of Burch), No. 20-11074,
2021 WL 5286563, at *1 (5th Cir. Nov. 12, 2021) (unpub.) ($100); William
Burch v. America’s Servicing Co. (Matter of Burch), No. 20-11132, 2022 WL
1402044, at *1 (5th Cir. May 4, 2022) ($500); William Burch v. Aurzada
(Matter of Burch), No. 20-10709, 2022 WL 1421166, at *1 (5th Cir. May 5,
2022)($500).
We have carefully reviewed the parties’ submissions, the record in
this and related cases, and applicable law. Burch’s arguments, even
construed liberally given her pro se status, identify no reversible error in the
district court’s rulings.
As the district court concluded, the requirement that the amount in
controversy exceed $75,000, exclusive of interest and costs, for diversity of
citizenship subject matter jurisdiction, pursuant to 28 U.S.C. § 1332, is
2
Case: 22-10025 Document: 00516735624 Page: 3 Date Filed: 05/02/2023
No. 22-10025
satisfied. 2 Notably, contrary to Burch’s assertions, her claims are not
premised on or directed to an amount less than $75,000. Rather, Burch
sought (1) injunctive relief to prevent the foreclosure sale of the property
located at 1713 Enchanted Lane, Lancaster, Texas; (2) removal of Freedom
Mortgage’s lien and all charges against the property, 3 (3) an order directing
Freedom Mortgage to endorse an insurance check in the amount of
$3,682.77, 4 and (4) an award of various compensatory and punitive
damages. 5 Because Burch’s request for injunctive relief seeks to preclude a
foreclosure sale of the Enchanted Lane property, the amount in controversy
is measured by the value of the object of the litigation, i.e., the value of the
Enchanted Lane property. See Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 347 (1977) (“In actions seeking declaratory or
injunctive relief, it is well established that the amount in controversy is
measured by the value of the object of the litigation.”); Farkas v. GMAC
Mortg., L.L.C., 737 F.3d 338, 341 (5th Cir. 2013) (per curiam) (where the
object of requested injunctive and declaratory relief was to stop the
foreclosure sale of property, the property’s value represented the
jurisdictional amount in controversy). Thus, the district court did not err in
relying on the Dallas County Appraisal District’s $148,930 valuation of the
property. 6
Additionally, relative to Burch’s request for removal of Freedom
Mortgage’s lien and all charges against the property, the notice of default and
_____________________
2
See Record on Appeal (“R.”) at 904–907, 1705.
3
R. at 41–42.
4
R. at 42, 73, and 116.
5
R. at 41–42. Burch’s requested compensatory damages include sums necessary to
complete necessary repairs to the property and lost income. R. at 33–34, 37 and 42.
6
R. at 905–06, 1705; R. at 16, 153–59.
3
Case: 22-10025 Document: 00516735624 Page: 4 Date Filed: 05/02/2023
No. 22-10025
foreclosure documents referenced in Burch’s October 9, 2020 state-court
filings report a total past due amount that, as of August 3, 2020, was
$93,540.86. 7 And, by certified mail dated September 9, 2020, Freedom
Mortgage informed Burch that the maturity date of the note “is accelerated,
and all unpaid principal, interest, fees, charges, and other recoverable
amounts are now due.” 8
Burch’s challenges to the district court’s determinations that her
claims are barred by collateral estoppel principles and Texas’ four-year
_____________________
7
R. at 115–21, 377–78, and 1831–32.
8
R. 118–19. Although Burch argues certain amounts should be subtracted (from
the $93,540.86 total) as the “interest and costs” excluded by 28 U.S.C. § 1332, that
argument fails given that Burch, as the plaintiff in this matter, not Freedom Mortgage, is
the party seeking judicial relief relative to these amounts. In any event, certain sums
otherwise properly denominated as “interest” nevertheless fall outside of § 1332’s
“interest” exclusion. See Cleartrac, L.L.C. v. Lanrick Contractors, L.L.C., 53 F.4th 361,
366 (5th Cir. 2022) (purpose of § 1332(a)’s exclusion of interest is to prevent the plaintiff
from delaying suit until the substantive claim, with accrued interest, exceeds the
jurisdictional amount); id. at 365–68 (interest that is part of the principal claim is included
in the jurisdictional amount but interest that arises solely by virtue of a delay in payment is
not); see also Brown v. Webster, 156 U.S. 328, 329–30 (1895) (interest that is a basis for the
suit itself is considered for jurisdictional purposes); Danial v. Daniels, 162 F. App’x 288,
290–91 (5th Cir. 2006) (per curiam) (unpub.) (interest on a note accruing prior to maturity
is part of amount in controversy; interest accruing after maturity is not) (citing Greene Cnty.
v. Kortrecht, 81 F. 241 (5th Cir. 1897)); Christiana Tr. v. Henderson, 181 F. Supp. 3d 375,
378 (S.D. Tex. 2016) (interest accruing on a note prior to maturity (due date of final
payment) is contractual interest, not an accessory, and is included in amount in
controversy); 14AA Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure, § 3712 (4th ed.) (Westlaw, database updated Aug. 19,
2022). Expenses are exempted from § 1332(a)’s exclusion of “costs” when, pursuant to
applicable substantive law, they are an element of the plaintiff’s damage claim; the same is
true of attorney’s fees awarded as a matter of contractual or statutory right. Wright &
Miller, supra, § 3712. The November 17, 2005 note for the loan secured by the 1713
Enchanted Lane property entitles the note holder (to the extent not prohibited by law) to
payment of all of its costs and expenses, including reasonable attorney’s fees, incurred in
the enforcement of the note. R. at 45.
4
Case: 22-10025 Document: 00516735624 Page: 5 Date Filed: 05/02/2023
No. 22-10025
limitations provision likewise fail. 9 Although the prior judicial
determinations of the validity of Freedom Mortgage’s note and lien occurred
in the course of litigation involving Burch’s husband, nothing in the instant
record suggests that the district court erred in finding privity between the
spouses for collateral estoppel purposes. The same is true for collateral
estoppel’s other requirements. Finally, as the district court concluded,
Burch has been aware of the basis of her challenge to the validity of Freedom
Mortgage’s note and lien since 2011. 10 And any arguments that the relevant
limitations period was tolled during the time that her husband was litigating
the validity of Freedom Mortgage’s lien demonstrate why collateral estoppel
principles apply here.
Burch’s briefs also mention her request that Freedom Mortgage be
directed to endorse an insurance check in the amount of $3,682.77. The
district court denied the motion that she filed regarding this check because
Burch had not obtained the approval of the bankruptcy court to file the
motion, as required by the bankruptcy court’s February 2, 2021 “vexatious
litigant” order. 11 Despite mentioning the check, Burch’s briefs do not
adequately explain why the district court’s ruling was legally incorrect.
Accordingly, any assertion of error relative to the insurance check in the
amount of $3,682.77 has been forfeited.
Given the absence of reversible error, we AFFIRM the district
court’s December 6, 2021 final judgment dismissing Burch’s claims with
prejudice and expunging the lis pendens that Burch had recorded relative to
the Enchanted Lane property.
_____________________
9
R. 907–14, 1705; R. 325–37.
10
R. 70–71, 77–81.
11
R.1797-99, 2012.
5
Case: 22-10025 Document: 00516735624 Page: 6 Date Filed: 05/02/2023
No. 22-10025
As a final matter, our review of the court’s docket reveals that,
following the completion of briefing in this appeal, another panel of this court
affirmed a district court judgment dismissing, on grounds of preclusion, all
of Burch’s claims against Rushmore Loan Management Services, L.L.C. See
Juanita Burch v. Rushmore Loan Mgmt. Servs., L.L.C. (Matter of Burch), No.
22-10349, 2022 WL 14365474, at *1 (5th Cir. Oct. 25, 2022). 12 In light of the
instant ruling and the October 25, 2022 ruling, Plaintiff-Appellant Juanita
Burch is warned that frivolous or abusive filings in this court, the district
court, or the bankruptcy court will result in the imposition of sanctions.
AFFIRMED; SANCTION WARNING ISSUED.
_____________________
12
Lamentably, neither party supplemented their prior submissions with this
decision. See Fed. R. App. P. 28(j).
6