United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge
se plaintiff, Dulce Minor, brings this wrongful foreclosure
case against the defendants, Nationstar Mortgage, LLC
("Nationstar") and U.S. Bank National Association
("U.S. Bank"). Minor says the defendants used
"an invalid document" to foreclose on the home once
owned by her now-deceased husband and illegally evict her.
The defendants moved to dismiss Minor's claims pursuant
to Fed.R.Civ.P. 12(b)(6). The plaintiff filed a motion for
leave to amend her complaint, and the defendants filed a
motion for leave to file a reply in support of their motion
to dismiss. Res judicata bars Minor's claims
because she previously filed a nearly identical case in state
court, and that court dismissed the case on the merits. The
Court grants the motion to dismiss based on res
judicata and denies the motion for leave to amend
because any amendment would be futile.
January 2006, the plaintiffs now-deceased spouse, Mark Minor,
executed a deed of trust for a loan of $63, 169.60 from
American General Financial Services (DE), Inc. to property
located at 2218 Concord Avenue, Richmond, Virginia 23234.
(Dk. No. 7-1.) At some time between 2006 and 2015,
American General Financial Services (DE), Inc., became
Springleaf Financial Services, Inc. On September 5, 2015,
Springleaf Financial Services, Inc. f/k/a American General
Financial Services Inc., d/b/a American General Financial
Services (DE), Inc., assigned its interest to U.S. Bank
National Association, as Indenture Trustee for Springleaf
Mortgage Loan Trust 2013-3. (Dk. No. 7-2.) On January 6,
2016, U.S. Bank National Association, as Indenture Trustee
for Springleaf Mortgage Loan Trust 2013-3, assigned its
interest to U.S. Bank National Association, as Indenture
Trustee for Springleaf Mortgage Loan Trust 2013-3, Mortgage
Backed Notes, Series 2013-3. (Dk. No. 7-3.) Nationstar acted
as the servicer of the loan.
point, Mark Minor passed away and the loan went into default.
The plaintiff knew the estate was in default. She received
eight notices from the defendants and even expected the
notices, but she "did not read the notices
thoroughly." (Compl. ¶ 2, Dk. No. 1-1.) At the
foreclosure auction, U.S. Bank National Association, as
Indenture Trustee for Springleaf Mortgage Loan Trust 2012-3,
Mortgage Backed Notes, Series 2013-3, purchased the property
and later evicted the plaintiff.
October 2016, the plaintiff filed suit against Nationstar,
U.S. Bank, and other defendants in the Circuit Court for the
City of Richmond, claiming that the foreclosure sale and
subsequent eviction were the result of an "outdated
agreement." The court sustained the defendants'
demurrer and dismissed the complaint on February 16, 2017.
March 9, 2017, Minor filed the current complaint in the
Circuit Court for the City of Richmond. The defendants
removed the case on April 3, 2017, and filed a motion to
dismiss on April 21, 2017. Minor filed a motion for leave to
amend her complaint on May 5, 2017, and attached a proposed
amended complaint making the same substantive arguments as
the original complaint but referring to the previously
alleged "invalid documents" instead as
judicata, or claim preclusion, bars Minor's claims,
so the Court does not reach the merits of the defendants'
motion to dismiss. Further, amending the complaint would be
futile in this case, and the Court denies Minor's motion
Res Judicata Bars the Plaintiffs Suit
res judicata laws govern this dispute. See Q
Int'l Courier Inc. v. Smoak, 441 F.3d 214, 218 (4th
Cir. 2006) ("[T]he preclusive effect, if any, of the
first action on the second action should have been decided
under the res judicata law of the state of
Virginia-the law of the state where the ... court sat in the
first action.") (citation omitted).
Virginia law, res judicata bars an action that (1)
arises from the same conduct, transaction, or occurrence,
whether or not the legal theory or rights asserted in the
second or subsequent action were raised in the prior suit;
(2) has been previously decided on the merits by a final
judgment; and (3) contains the same parties or parties in
privity to those from the prior suit. See Houmadi v. U.S.
Bank Nat. Ass'n, No. 1:14-CV-997-CMH, 2014 WL
5092624, at *1 (E.D. Va. Sept. 26, 2014). "The party
asserting res judicata as a defense must prove by a
preponderance of the evidence that a claim is precluded by a
prior judgment." Id. (citing Smoak,
441 F.3d at 219). Finally, although "some leniency can
be afforded" to pro se plaintiffs, "pro se status
is not sufficient to overcome the precluding effect of the
Court's judgment" on the prior claims. Chisholm
v. Epps, No. 3:16-CV-00078-GCM, 2016 WL 3452751, at *4
(W.D. N.C. June 21, 2016). Here, the defendants have shown
each element of res judicata by a preponderance of
2006, the Virginia legislature intentionally broadened the
scope of claims barred by res judicata, amending the
law to bar those claims arising out of "the same
conduct, transaction, or occurrence as the previously
litigated claim, rather than merely those with 'the same
cause of action asserted in the former proceeding.'"
Martin-Bangura v. Virginia Dep 't of Mental
Health, 640 F.Supp.2d 729, 738 (E.D. Va. 2009).
Minor's current claims, raised in either her initial or
proposed amended complaint, arise from the same conduct,
transaction, or occurrence as her previous litigation-the
foreclosure sale of her deceased husband's property and
her subsequent eviction. Her new legal theories related to
invalid or fraudulent documents necessarily stem from the
same exact conduct as in her initial case.
state court issued a final judgment on the merits when it
sustained the defendants' demurrer and dismissed the
complaint on February 16, 2017. Astrop v. Eckerd
Corp., No. 3:09CV681, 2010 WL 1779992, at *9 (E.D. Va.
Apr. 29, 2010). ("[A] dismissal on demurrer is a
judgment on the merits and [has] preclusive effect.")