EVA ANDERSON, Plaintiff - Appellant v. WELLS FARGO BANK, N.A.; OCWEN LOAN SERVICING, INCORPORATED; JIM B. TOHILL, Defendants - Appellees
No. 18-60546
United States Court of Appeals for the Fifth Circuit
March 12, 2020
STUART KYLE DUNCAN, Circuit Judge
Appeal from the United States District Court for the Southern District of Mississippi
Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
Pro se plaintiff-appellant Eva Anderson has sued various combinations of the present
I.
In 2004, Anderson executed a $207,000 mortgage, in the form of a deed of trust, against a property in Petal, Mississippi. In 2006, she sued the mortgage‘s owner and servicers in state court, regarding the mortgage‘s adjustable-rate rider. The case was removed and then settled. As part of the settlement, Anderson agreed to release the defendants and their assigns from any claims “directly or indirectly connected with or related to claims that were or could have been asserted” in that lawsuit. In 2010, Anderson sued the owners’ and servicers’ successors in state court, bringing essentially the same claims as in 2006. Summary judgment was granted and affirmed based on Anderson‘s previous release and res judicata. Anderson v. Barclays Capital Real Estate, Inc., 136 So. 3d 1080 (Miss. Ct. App. 2013). Her third lawsuit, brought in state court in 2013, was dismissed. Her fourth, filed in federal court in 2015, alleged the mortgage and settlement were fraudulent. It, too, was dismissed. She filed a fifth pro se lawsuit later in state court in 2015, alleging that an assignment of her mortgage from one servicer to another was fraudulent. Following removal, this lawsuit was dismissed because Anderson lacked standing to challenge the assignment. Anderson appealed, and we affirmed. See Anderson v. Argent Mortg. Co., L.L.C., 692 F. App‘x 769, 770 (5th Cir. 2017).
Now, on her sixth attempt, Anderson brings ten claims, all based on an allegation that the assignment of her mortgage “is fatally defective as it does not assign the note and deed to any trust” and instead “assigns it to a non-existing nothing.” From this, she alleges “wire fraud,” “theft by conversion,” “abuse of process,” and a number of other frivolous transgressions. The present defendant-appellees, Wells Fargo, N.A., Ocwen Loan Servicing, Inc., and Jim B. Tohill, trustee of the deed of trust, removed the matter from Mississippi state court and moved to dismiss on res judicata grounds under
II.
A dismissal pursuant to
III.
We first address Anderson‘s contention that the district court lacked diversity jurisdiction over the removed matter because Tohill and Anderson are both Mississippi residents. She is incorrect. For purposes of diversity of citizenship, we ignore the presence of mere “nominal” parties, without whose presence the district court could still “enter a final judgment consistent with equity and good conscience.” Louisiana v. Union Oil Co. of Cal., 458 F.3d 364, 366–67 (5th Cir. 2006) (citation omitted; cleaned up). Under Mississippi law, the trustee of a deed of trust “is little more than an agent” whose duties are “prescribe[d]” by the deed. Wansley v. First Nat‘l Bank of Vicksburg, 566 So. 2d 1218, 1223 (Miss. 1990). Of course, the trustee is not necessarily a nominal party when he is alleged to have misadministered the trust or has a similar personal connection with the claims. See, e.g., Sims v. Shapiro & Massey, LLP, No. 2:11-CV-248, 2012 WL 13024148, at *2–3 (S.D. Miss. Jan. 17, 2012) (trustee not nominal party where complaint alleged trustee “was a knowing and active participant in the intentional wrongful foreclosure” and there was “a reasonable basis to predict that” plaintiff could recover from trustee in state court). But where the complaint contains no meaningful allegations regarding the trustee and he has no special stake in the litigation, the trustee may be disregarded as nominal. See Jeanes-Kemp, LLC v. Johnson Controls, Inc., No. 1:09-CV-723, 2010 WL 502698, at *1–2 (S.D. Miss. Feb. 5, 2010). Here, Anderson‘s complaint contains no allegations or claims against Tohill. There are no allegations Tohill was actively involved in any of the events giving rise to Anderson‘s claims. Under these circumstances, Tohill is a mere nominal party whose presence did not defeat diversity jurisdiction.
IV.
We next address whether res judicata bars Anderson‘s complaint. As a matter of federal common law, federal courts sitting in diversity apply the preclusion law of the forum state unless it is incompatible with federal interests. See Semtek Int‘l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001). Along the same lines, “[i]n determining the preclusive effect of an earlier state court judgment, federal courts apply the preclusion law of the state that rendered the judgment.” Weaver v. Tex. Capital Bank N.A., 660 F.3d 900, 906 (5th Cir. 2011). Here, all five judgments’ preclusive effects are determined by Mississippi law. This is because the first, fourth, and fifth judgments were rendered by the Southern District of Mississippi sitting in diversity, applying Mississippi law, see Semtek, 531 U.S. at 508, and the second and third judgments were rendered by Mississippi state courts, see Weaver, 660 F.3d at 906.
(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.
Derr v. Swarek, 766 F.3d 430, 440 (5th Cir. 2014) (quoting inter alia Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (Miss. 2005)).
Here, as the district court noted, all of Anderson‘s previous actions resulted in final merits judgments from courts of competent jurisdiction. Moreover, all four identities are met. Wells Fargo and Ocwen are common to previous proceedings, satisfying the third identity. Wells Fargo was a defendant in Anderson‘s fifth lawsuit, among others. Ocwen was a party to her second lawsuit, filed in 2010. They were sued in “their same respective interests“—owner and servicer of the mortgage—in the prior cases, satisfying the fourth identity. Avakian v. Wilmington Tr., N.A., 242 So. 3d 961, 970 (Miss. Ct. App. 2018). Centered on the 2004 mortgage and subsequent assignment, the present lawsuit “stem[s] from” the same “nucleus of operative fact” and “involves the same body of evidence” as the previous five lawsuits, satisfying the first and second identities. Harrison, 891 So. 2d at 234–36 (citations omitted; cleaned up). We therefore agree with the district court that res judicata bars Anderson‘s claims.
V.
Finally, we determine Anderson‘s appeal to be frivolous and therefore order her to show cause why she should not be sanctioned under
We find Anderson‘s appeal frivolous. Anderson fails to advance any ground for reversal not clearly foreclosed by previous proceedings and the settlement agreement. Moreover, as the district court put it, Anderson‘s complaint strongly suggests her repeated lawsuits are “aimed at delaying the lawful foreclosure of the property” against which the mortgage was issued.
Ours is at least the third judicial notice Anderson has been given regarding her frivolous filings. The district court found Anderson‘s present lawsuit was “in clear violation” of
We therefore order Anderson to show cause within fourteen days why we should not impose sanctions, including: (1) an injunction
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The district court‘s judgment is therefore AFFIRMED, and Anderson is ORDERED to show cause within fourteen days why she should not be sanctioned as described above.