Peter Otoh v. Federal National Mortgage Association

USCA11 Case: 22-13279 Document: 25-1 Date Filed: 07/19/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13279
Non-Argument Calendar
____________________
PETER OTOH,
Plaintiff-Appellant,
versus
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
NATIONSTAR MORTGAGE, LLC,
d.b.a. Mr. Cooper,
NEWREZ LLC,
d.b.a. Shellpoint Mortgage Servicing,
US BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
owner trustee for VRMTG Asset Trust,
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2 Opinion of the Court 22-13279
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-02488-TCB
____________________
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
Peter Otoh, pro se, appeals from the district court’s denial of
his motion to remand to state court for lack of subject matter juris-
diction and the district court’s grant of motions to dismiss for Fed-
eral National Mortgage Association (Fannie Mae); Nationstar
Mortgage, LLC, doing business as Mr. Cooper (Nationstar);
Newrez, LLC, doing business as Shellpoint Mortgage Servicing
(Shellpoint); and US Bank Trust National Association, as owner
trustee for VRMTG Asset Trust (US Bank) (collectively the Appel-
lees).
Otoh argues on appeal that the district court lacked jurisdic-
tion because there was not complete diversity of the parties and
because the amount in controversy did not exceed $75,000. He also
argues that his claims were not barred by res judicata because the
bankruptcy court, in proceedings separate from the proceedings
the district court relied upon for res judicata purposes, abstained
from determining the validity of a security deed from 2013.
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22-13279 Opinion of the Court 3
I.
We employ a two-tiered standard of review for the district
court’s determination of subject-matter jurisdiction. The ultimate
question of jurisdiction is considered de novo, but “[t]he district
court's factual findings with respect to jurisdiction, however, are
reviewed for clear error.” United States v. Tinoco, 304 F.3d 1088,
1114 (11th Cir. 2002). Factual findings may only be overturned un-
der the clear error standard if we are “left with the definite and firm
conviction that a mistake has been committed.” Eggers v. Alabama,
876 F.3d 1086, 1094 (11th Cir. 2017).
District courts have subject matter jurisdiction over civil ac-
tions where the amount in controversy exceeds $75,000, and the
action is between citizens of different states. 28 U.S.C. § 1332(a).
Defendants may remove such actions filed in a state court to the
district court for the district and division where the state court ac-
tion is pending. 28 U.S.C. § 1441(a). “[A]ll defendants who have
been properly joined and served must join in or consent to the re-
moval of the action.” 28 U.S.C. § 1446(b)(2)(A).
In determining whether there is subject matter jurisdiction,
the district court can consider facts beyond the plaintiff’s pleadings
when the plaintiff fails to specify the total amount of damages de-
manded. Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir.
2002). In that case, the defendant seeking removal must prove the
amount in controversy by a preponderance of the evidence. Id. In
doing so, the removing defendant may direct the court to
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4 Opinion of the Court 22-13279
additional evidence beyond the complaint. Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010).
“[W]hen the validity of a contract or a right to property is
called into question in its entirety, the value of the property con-
trols the amount in controversy.” Waller v. Pro. Ins. Co., 296 F.2d
545, 547–48 (5th Cir. 1961). 1 For diversity purposes, “when a trus-
tee files a lawsuit or is sued in her own name, her citizenship is all
that matters for diversity purposes.” Americold Realty Tr. v. Conagra
Foods, Inc., 577 U.S. 378, 383 (2016). Therefore, for a traditional
trust, there is no need to determine its membership to determine
diversity jurisdiction. Id.Under Federal Rule of Evidence 1005, copies of official rec-
ords can be used as evidence if the original record or document is
otherwise admissible, and the copy of the record has been certified
under Rule 902(4) or a witness testifies that it is a true and correct
copy. Fed. R. Evid. 1005.
Here, the district court did not err in denying Otoh’s motion
to remand because it had subject matter jurisdiction over the case.
The Appellees’ notice of removal adequately stated that there was
total diversity of the parties, and the amount in controversy ex-
ceeded $75,000 either based on the total value of the property in
1 Decisions of the former Fifth Circuit issued before October 1, 1981, consti-
tute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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22-13279 Opinion of the Court 5
question or based on the remaining principal on the loan at issue.
Accordingly, we affirm as to this issue.
II.
Since res judicata determinations are pure questions of law,
we review them de novo. Norfolk S. Corp. v. Chevron, U.S.A., Inc.,
371 F.3d 1285, 1288 (11th Cir. 2004).
Res judicata bars the parties to a prior action from relitigat-
ing the same causes of action that were, or could have been, raised
in that prior action if that action resulted in a final judgment on the
merits. In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.
2001). Res judicata “generally applies not only to issues that were
litigated, but also to those that should have been but were not.”
Delta Air Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 586 (11th Cir.
1983). Res judicata applies where the following four elements are
shown: (1) the prior decision was rendered by a court of competent
jurisdiction, (2) there was a final judgment on the merits, (3) both
cases involve the same parties or their privies, and (4) both cases
involve the same causes of action. In re Piper Aircraft Corp., 244 F.3d
at 1296. Citing the Supreme Court precedent, we have held that
bankruptcy orders serve as a final judgment on the merits for pur-
poses of res judicata. In re FFS Data, Inc., 776 F.3d 1299, 1306 (11th
Cir. 2015) (citing Travelers Indem. Co. v. Bailey, 557 U.S. 137, 140
(2009)).
As to the third factor, we have explained that “privity” com-
prises several different types of relationships and generally applies
“when a person, although not a party, has his interests adequately
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6 Opinion of the Court 22-13279
represented by someone with the same interests who is a party.”
E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1286 (11th Cir. 2004).
Further, parties are in privity with one another either when the
nonparty to the prior action succeeds the party’s interest in prop-
erty or when the party and the nonparty have concurrent interests
in the same property. Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d
1468, 1472 (11th Cir. 1986).
As to the fourth factor, “[i]n general, cases involve the same
cause of action for purposes of res judicata if the present case arises
out of the same nucleus of operative fact, or is based upon the same
factual predicate, as a former action.” Israel Disc. Bank Ltd. v. Entin,
951 F.2d 311, 315 (11th Cir. 1992) (internal quotation omitted). “In
determining whether the causes of action are the same, a court
must compare the substance of the actions, not their form.” In re
Piper Aircraft Corp., 244 F.3d at 1297. “The test for a common nu-
cleus of operative fact is whether the same facts are involved in
both cases, so that the present claim could have been effectively
litigated with the prior one.” Lobo v. Celebrity Cruises, Inc., 704 F.3d
882, 893 (11th Cir. 2013) (internal quotation omitted).
Here, the district court did not err in determining that
Otoh’s claims were barred by res judicata. Considering the first
two elements of res judicata, the bankruptcy court’s order dismiss-
ing Otoh’s adversary Chapter 7 bankruptcy proceeding was a final
judgment on the merits by a court with proper jurisdiction. Look-
ing to the third element, both the bankruptcy case and the current
case involve the same parties or parties in privity with the parties
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22-13279 Opinion of the Court 7
of the Chapter 7 proceedings. Indeed, each of the Appellees are
loan servicers, lenders, or investors asserting the same property
rights. Finally, regarding the fourth element, all of Otoh’s claims
in the current case relied upon his assertion that a 2018 agreement
with Nationstar was a refinancing of his loan rather than a loan
modification. Because the bankruptcy court determined that the
agreement was a loan modification, all of Otoh’s claims arise out
of the same nucleus of operative fact and could have effectively
been raised during the bankruptcy proceedings. Accordingly, be-
cause all four elements are satisfied, res judicata applies, and we
affirm the district court’s grant of the Appellees’ motions to dis-
miss.
AFFIRMED.