Seber v. Bank of America, N.A.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 2, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MABLE C. SEBER; MARTY J. SEBER,
Plaintiffs - Appellants,
v. No. 17-4132
(D.C. No. 1:16-CV-00111-RJS-BCW)
BANK OF AMERICA, N.A., f/k/a (D. Utah)
Countrywide Home Loans, Inc.; THE
BANK OF NEW YORK MELLON, as
successor trustee to JP Morgan Chase
Bank, as trustee for the certificate holders
of CWABS Master Trust, revolving home
equity loan asset backed notes series 2004J,
f/k/a Bank of New York; SKYLINE
HOLDINGS GROUP,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, McKAY, and KELLY, Circuit Judges.
_________________________________
Pro se plaintiffs Mable C. Seber and Marty J. Seber (Sebers), appeal from the
district court’s order that dismissed their first amended complaint with prejudice on
*
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 This order and judgment is not binding precedent,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.
res judicata grounds and denied their motion to file a second amended complaint as
futile. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm for substantially the
same reasons in the thorough and well-reasoned report and recommendation of the
magistrate judge, which was adopted in its entirety by the district court.
The parties are familiar with the facts. Briefly, in 2004, Ms. Seber obtained a
home equity line of credit (loan) from Countrywide Home Loans (Countrywide) to
purchase property in Utah. She executed an agreement that evidenced the loan and a
deed of trust to secure payments. In 2007, after missing several monthly payments,
Ms. Seber executed a modification agreement that added unpaid interest on the
original loan to the principal balance. By 2009, the loan was in default and
foreclosure proceedings began under the terms of the deed of trust.
Since 2009, the Sebers have been involved in no less than seven lawsuits
related to the property, including five suits they initiated. Four of the suits were filed
in state court, and three (including this suit) were filed in federal court. All the suits
stemmed from the loan Ms. Seber obtained from Countrywide in 2004. The details
of the previous suits are outlined in the magistrate judge’s report and
recommendation. Of particular importance is the suit filed by the Sebers in 2009 to
stop the foreclosure. In that suit, they alleged various forms of fraud and claims for
quiet title, recission based on fraud, unfair debt collection practices, including a
claim under the Truth In Lending Act (TILA), unfair business practices, breach of
fiduciary duty, declaratory judgment, and injunctive relief. In 2010, the district court
granted summary judgment for defendants and dismissed the claims with prejudice.
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In this, their most recent suit, the Sebers alleged claims for breach of contract,
violations of TILA, wrongful foreclosure, quiet title, and declaratory relief. The
named defendants—all of whom have been involved at some point in time in the
previous suits—moved to dismiss on res judicata grounds.1
“Res judicata doctrine encompasses two distinct barriers to repeat litigation:
claim preclusion and issue preclusion.” Park Lake Res. LLC v. U.S. Dep’t of Agric.,
378 F.3d 1132, 1135 (10th Cir. 2004). Here, the magistrate judge found the suit was
barred under claim preclusion, which has three elements: “(1) a final judgment on
the merits in an earlier action; (2) identity of parties or privies in the two suits; and
(3) identity of the cause of action in both suits.” Lenox MacLaren Surgical Corp., v.
Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (brackets and internal
quotation marks omitted).
After reviewing the Sebers’ objections, the district court adopted the report
and recommendation in its entirety. The court rejected the argument that there was
not an identity of the causes of action in both suits. In particular, it agreed with the
magistrate judge’s legal conclusion that there was an identity of the causes of action
under the transactional approach, which defines a cause of action as “includ[ing] all
1
The Sebers sought permission to file a second amended complaint to add the
subsequent purchasers of the property as defendants. The magistrate judge
recommended that the motion be denied as futile, and the district court adopted the
recommendation. The Sebers have not challenged that ruling on appeal and we do
not consider it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)
(“[W]e routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”).
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claims or legal theories of recovery that arise from the same transaction, event, or
occurrence.” Id. at 1240 (internal quotation marks omitted). And it further found
that the Sebers failed to explain why the alleged new facts and evidence did not arise
out of the same transaction that was the subject of their previous suit.
The crux of the Sebers’ argument on appeal is that this suit contains an entirely
new claim—“[a]ll acts/proceedings/orders/sales/transfers are VOID as a matter of
law.” Aplt. Opening Br. at 3. This is the same argument that the magistrate judge
and district court considered and rejected, and the Sebers have failed to identify any
legal or factual error.
The judgment of the district court is affirmed.
Entered for the Court
Monroe G. McKay
Circuit Judge
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