Cooper v. Bank of America, National Association et al, No. 2:2014cv02550 - Document 22 (D. Kan. 2015)
Court Description: MEMORANDUM AND ORDER granting defendants' 9 , 11 Motions to Dismiss. Plaintiff's complaint is dismissed. Signed by U.S. District Senior Judge Sam A. Crow on 3/10/15. Mailed to pro se party Amy Cooper by certified mail; Certified Tracking Number: 7010 2780 0003 1927 5877 (msb)
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Cooper v. Bank of America, National Association et al Doc. 22 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS AMY COOPER, Plaint iff, v. Case No. 14- 2550- SAC BANK OF AMERI CA, N.A., and BRYAN CAVE, LLP, Defendant s. MEMORANDUM AND ORDER This case com es before t he court on Defendant s’ m ot ions t o dism iss plaint iff’s com plaint pursuant t o Federal Rule of Civil Procedure 12( b) ( 6) . Defendant s cont end t hat t he com plaint is barred by res j udicat a. 1 Plaint iff assert s claim s against BANK OF AMERI CA, N.A ( BANA) for ( 1) violat ions of t he Fair Credit Report ing Act ( FCRA) ; ( 2) violat ions of t he Kansas Fair Credit Report ing Act ( KFCRA) ; ( 3) invasion of privacy; ( 4) negligent hiring and supervision; ( 5) violat ions of t he Fair Debt Collect ion 1 Defendant s also cont end in t heir reply brief t hat t he com plaint is barred by t he RookerFeldm an doct rine, but t he Court shall not address t hat new issue since t he Plaint iff did not have a fair opport unit y t o respond t o it . See Niles v. Am erican Airlines, I nc., 563 F.Supp.2d 1208, 1213 ( D.Kan. 2008) . Furt her, t he Rooker–Feldm an doct rine “ is confined t o cases … brought by st at e- court losers com plaining of inj uries caused by st at e- court j udgm ent s rendered before t he dist rict court proceedings com m enced and invit ing dist rict court review and rej ect ion of t hose j udgm ent s.” Exxon Mobil Corp. v. Saudi Basic I ndus. Corp., 544 U.S. 280, 284, 125 S.Ct . 1517, 161 L.Ed.2d 454 ( 2005) ( em phasis added) . See D.A. Osgut horpe Fam ily Part nership v. ASC Ut ah, I nc., 705 F.3d 1223, 1232 ( 10t h Cir. 2013) ( finding plaint iff filed it s federal suit while t he st at e court appeal was st ill pending so Rooker–Feldm an doct rine was inapplicable) . Dockets.Justia.com Pract ices Act ( FDCPA) ; and ( 6) violat ions of t he Kansas Consum er Prot ect ion Act ( KCPA) . These claim s arise from BANA’s at t em pt s t o collect paym ent s due and foreclose under a not e and deed of t rust Plaint iff execut ed on May 23, 2006 wit h anot her credit or. Plaint iff essent ially alleges t hat she does not have a loan wit h BANA and t hat BANA has no right t o at t em pt t o collect paym ent s from her. The m ot ions t o dism iss are based on a prior act ion Defendant s filed in Missouri. On January 15, 2013, BANA filed an act ion in Missouri, Case No. 1331- CV00051, seeking t o foreclose t he Deed of Trust t hat was secured by Plaint iff’s propert y in Springfield, Missouri ( “ Missouri act ion” ) . Plaint iff filed t his federal case on Oct ober 28, 2014. One week lat er, on Novem ber 4t h, t he Missouri court ent ered a Final Order and Judgm ent dism issing Plaint iff’s count erclaim s wit h prej udice and finding t hat BANA had legal aut horit y t o foreclose t he Deed of Trust because it was t he holder of t he not e and Deed of Trust at issue. Dk. 10, Exh. B. Bryan Cave LLP act ed as BANA’s legal counsel in t he Missouri act ion. Plaint iff brings claim s against t hat law firm in t his case for negligent hiring and supervision, FDCPA violat ions, and KCPA violat ions, based upon t hat represent at ion. 2 M ot ion t o D ism iss St a n da r d To survive a m ot ion t o dism iss for failure t o st at e a claim , a com plaint m ust have facial plausibilit y. To survive a m ot ion t o dism iss, a com plaint m ust cont ain sufficient fact ual m at t er, accept ed as t rue, t o “ st at e a claim for relief t hat is plausible on it s face.” I d. [ Bell At l. Corp. v. Twom bly, 550 U.S. 544, 570, 127 S.Ct . 1955, 167 L.Ed.2d 929 ( 2007) ] at 570. A claim has facial plausibilit y when t he plaint iff pleads fact ual cont ent t hat allows t he court t o draw t he reasonable inference t hat t he Defendant is liable for t he m isconduct alleged. I d. at 556 [ 127 S.Ct . 1955] . The plausibilit y st andard is not akin t o a “ probabilit y requirem ent ,” but it asks for m ore t han a sheer possibilit y t hat a Defendant has act ed unlawfully. I d. Where a com plaint pleads fact s t hat are “ m erely consist ent wit h” a Defendant 's liabilit y, it “ st ops short of t he line bet ween possibilit y and plausibilit y of ‘ent it lem ent t o relief.’ “ I d. at 557 [ 127 S.Ct . 1955] . Ashcroft v. I qbal, 556 U.S. 662, 129 S.Ct . 1937, 1949, 173 L.Ed.2d 868, 884 ( 2009) . “ Threadbare recit als of t he elem ent s of a cause of act ion, support ed by m ere conclusory st at em ent s, do not suffice.” I d. “ [ C] ourt s should look t o t he specific allegat ions in t he com plaint t o det erm ine whet her t hey plausibly support a legal claim for relief.” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 ( 10t h Cir. 2007) . I n evaluat ing a Rule 12( b) ( 6) m ot ion t o dism iss, t he court is lim it ed t o assessing t he legal sufficiency of t he allegat ions cont ained wit hin t he four corners of t he com plaint . Archulet a v. Wagner, 523 F.3d 1278, 1281 ( 10t h Cir. 2008) . But in considering t he com plaint in it s ent iret y, t he Court also exam ines any docum ent s “ incorporat ed int o t he com plaint by reference,” Tellabs, I nc. v. Makor I ssues & Right s, Lt d., 551 U.S. 308, 322, 127 S.Ct . 3 2499, 168 L.Ed.2d 179 ( 2007) , docum ent s at t ached t o t he com plaint , Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 ( 10t h Cir. 2012) , and m at t ers of which a court m ay t ake j udicial not ice, Tellabs, I nc. v. Makor I ssues & Right s, Lt d., 551 U.S. 308, 322- 323, 127 S.Ct . 2499, 2509 ( 2007) . Plaint iff has at t ached copies of various docum ent s t o her com plaint . Defendant s at t ach t o t heir briefs various papers filed in t he Missouri act ion, and t he Court t akes j udicial not ice of t hem . See Barnes v. Unit ed St at es, 776 F.3d 1134, 1137 ( 10t h Cir. 2015) . Re s Ju dica t a The Full Fait h and Credit Act , 28 U.S.C. § 1738 ( 1982) , requires a federal court t o give t he sam e preclusive effect t o a st at e- court j udgm ent t hat t he j udgm ent would be given in t he court s of t he st at e in which t he j udgm ent was rendered. Krem er v. Chem ical Const ruct ion Corp., 456 U.S. 461, 466, 102 S.Ct . 1883, 1889, 72 L.Ed.2d 262 ( 1982) ; Cam pbell v. Cit y of Spencer, __ F.3d __, 2014 WL 7145511 ( 10t h Cir. 2014) . The claim preclusive effect of t he j udgm ent in t he Missouri act ion is t hus det erm ined in t his case by Missouri law. See Jarret t v. Gram ling, 841 F.2d 354, 356 ( 10t h Cir. 1988) . Under Missouri law, res j udicat a bars relit igat ion of claim s when t he following four elem ent s are present : 1) ident it y of t he t hing sued for; 2) ident it y of t he cause of act ion; 3) ident it y of t he persons and part ies t o t he act ion; and 4) ident it y of t he qualit y of t he person for or against whom t he claim is m ade. King 4 General Cont ract ors, I nc. v. Reorganized Church of Jesus Christ of Lat t er Day Saint s, 821 S.W.2d 495, 500 ( Mo.banc 1991) . Briscoe v. Walsh, 445 S.W.3d 660, 664 ( Mo.App. E.D. 2014) . The doct rine bars not only claim s m ade, but claim s t hat could have been m ade in t he case. Unlike collat eral est oppel, res j udicat a applies not only t o point s and issues upon which t he court was required by t he pleadings and proof t o form an opinion and pronounce j udgm ent , but t o every point properly belonging t o t he subj ect m at t er of lit igat ion and which t he part ies, exercising reasonable diligence, m ight have brought forward at t he t im e. I d. Put ot herwise, a part y m ay not lit igat e an issue and t hen, upon an adverse verdict , revive t he claim on cum ulat ive grounds which could have been brought before t he court in t he first proceeding. I d. “ Separat e legal t heories are not t o be considered as separat e claim s, even if ‘t he several legal t heories depend on different shadings of t he fact s, or would em phasize different elem ent s of t he fact s, or would call for different m easures of liabilit y or different kinds of relief’ ” I d., quot ing Siest a Manor, I nc. v. Com m unit y Federal Savings and Loan Associat ion, 716 S.W.2d 835, 839 ( Mo.App. E.D.1986) . Briscoe, 445 S.W.3d at 664. Plaint iff’s opposit ion t o t he m ot ions t o dism iss st at es, am ong ot her m at t ers, t hat BANA did not show possession of her original not e, t hat she has never done business or had a credit t ransact ion wit h BANA, and t hat BANA has no lawful int erest in her propert y as a credit or. But t he final order and j udgm ent in t he Missouri act ion t raced t he assignm ent of t he Deed of Trust at issue from t he original credit or t o BANA, a successor by m erger, and found t hat BANA is ent it led t o enforce t he Not e and Deed of Trust . I t furt her found t hat t he original Not e had been lost or m isplaced and t hat despit e a reasonable and diligent search, BANA could not find it . These and ot her 5 findings in t he Missouri order address t he very fact s and issues Plaint iff has raised in t his case in response t o t he m ot ions t o dism iss. Plaint iff also cont ends t hat she did not get a j ury t rial and was not perm it t ed t o cross exam ine Defendant s in t he Missouri act ion. But since t he Missouri order was based on a sum m ary j udgm ent , no j ury t rial or cross- exam inat ion was necessary or proper. I n t he Missouri act ion, BANA brought suit against Ms. Cooper, t he plaint iff in t his case, t o enforce it s right s under t he Not e and Deed at issue in t his case. Ms. Cooper count erclaim ed, alleging: 1. Failure by [ BANA] t o validat e t he Debt under RSMO § 400- 9- 210( b) and USC 15 Sect ion 1692g, m aking [ BANA] liable and indebt ed t o [ Plaint iff] for $5.000.00; 2. False report ing t o Credit Bureaus, causing, dam aged credit and harm [ Plaint iff] m akes a claim for $5,000.00; 3. For [ BANA’s] deceit ful false billing, U.S. Mail Fraud and wire fraud, [ BANA] is indebt ed t o t he Defendant for $15,000.00; and 4. [ BANA] is indebt ed t o [ Plaint iff] for $25,000 due t o ident it y t heft . See Dk. 10, Exh. A; Dk. 12 Exh. A. Plaint iff’s underlying assert ion was t hat BANA had no legit im at e claim of int erest in her propert y. The docum ent s properly considered by t his court on t he m ot ions t o dism iss dem onst rat e t he presence of t he four elem ent s required for res j udicat a under Missouri law, as det ailed below. 6 I de n t it y of t he t h in g su e d for I n t he Missouri case, as here, Plaint iff sought t o est ablish BANA’s lack of abilit y t o foreclose on her propert y and m oney dam ages for it s alleged violat ion of t he st at ut es st at ed in her count erclaim s, above. The “ t hing sued for” t here via her count erclaim s, is ident ical t o t he t hing sued for here in her com plaint . See, e.g., Palm ore v. Cit y of Pacific, 393 S.W.3d 657, 666 ( Mo.App. E.D. 2013) ( finding t his elem ent “ sat isfied because ‘t he t hing sued for’ in bot h act ions was m onet ary dam ages arising out of t he sam e set of fact s.” ) . I de n t it y of t h e ca u se of a ct ion This elem ent focuses on t he fact ual basis of t he claim s. This Court has defined t he ident it y of t he cause of act ion as “ t he underlying fact s com bined wit h t he law, giving a part y a right t o a rem edy of one form or anot her based t hereon.” William s v. Fin. Plaza, I nc., 78 S.W.3d 175, 183 ( Mo.App. W.D. 2002) ( cit at ion and quot at ions om it t ed) . I t is not necessary t hat t he causes of act ion be ident ical, but t he claim s m ust have arisen out of t he “ ‘sam e act , cont ract , or t ransact ion.’ ” Chest erfield Village, I nc. v. Cit y of Chest erfield, 64 S.W.3d 315, 318–19 ( Mo. banc 2002) ( cit at ion om it t ed) ; Jordan v. Kansas Cit y, 929 S.W.2d 882, 886 ( Mo.App. W.D. 1996) . As such, t he focus is on t he “ fact ual bases of t he claim s, not t he legal t heories.” Chest erfield Village, I nc., 64 S.W.3d at 319. Xiaoyan Gu v. Da Hua Hu, 447 S.W.3d 680, 689- 90 ( Mo.App. E.D. 2014) . The t erm “ t ransact ion” is t o be broadly const rued and includes “ all of t he fact s and circum st ances which const it ut e t he foundat ion of a claim .” Andes, 897 S.W.2d at 23. Here, bot h act ions arise out of t he sam e underlying fact s, nam ely, 7 at t em pt ing t o enforce or oppose foreclosure on Plaint iff’s propert y. The subj ect m at t er of bot h cases is t he sam e. This is t rue even as t o Plaint iff’s claim against Bryan Cave for negligent hiring and supervision, which st at es a different legal t heory arising out of t he sam e fact s and challenges t he m anner of Bryan Cave’s represent at ion of BANA in t he Missouri act ion. I de n t it y of t h e pe r son s a nd pa r t ie s t o t h e a ct ion Plaint iff was t he nam ed defendant and BANA was t he nam ed plaint iff in t he Missouri act ion. Bryan Cave was not , however, nam ed in t hat case. But res j udicat a applies t o t he part ies and t heir privies, m eaning t hat t he part y in t he inst ant act ion need not have act ually been a part y in t he prior act ion. Palm ore v. Cit y of Pacific, 393 S.W.3d 657, 666, 667 ( Mo.App. E.D. 2013) . For privit y t o exist , as t o sat isfy t he sam e part y ident it y, t he int erest s of t he part y and non- part y m ust be “ so closely int ert wined t hat t he non- part y can fairly be considered t o have had his or her day in court .” St ine v. Warford, 18 S.W.3d 601, 605 ( Mo.App. W.D. 2000) . And alt hough Plaint iff arguably did not st at e count erclaim s against Bryan Cave, Plaint iff did m ake allegat ions expressly against Bryan Cave in t hat case by alleging t hat Bryan Cave m isled her by claim ing t o have t he aut horit y t o foreclose, t hat it engaged in harassm ent or abuse by sending her t hreat s t o foreclose and dem anding paym ent , t hat it m ade false represent at ions by t hreat ening t o foreclose, and t hat it engaged in unfair pract ices by not producing adm issible evidence t o prove her debt was t ruly owed. See Dk. 12, Exh. C ( Opening 8 St at em ent ) . Bryan Cave had t he sam e int erest s as BANA since it was act ing as it s at t orney or agent in t he Missouri Act ion rat her t han in it s individual capacit y, so was “ t ight ly aligned wit h t he int erest ” of BANA. See Jam es v. Paul, 49 S.W.3d 678, 683–84 ( 2001) . This is sufficient t o m eet t his elem ent . I de n t it y of t h e qu a lit y of t he pe r sons The sam e “ qualit y of person” exist s w here defendant s were ident ical and were sued in t he sam e capacit y in bot h suit s. See Palm ore v. Cit y of Pacific, 393 S.W.3d 657, 667 ( Mo. E.D. 2013) . This requirem ent is m et where a defendant 's “ st at us” is t he sam e in bot h suit s. Jordan v. Kansas Cit y, 929 S.W.2d 882, 887 ( Mo. WD 1996.) . The part ies in t his case act ed in t heir sam e capacit ies in t he Missouri case as here. Plaint iff’s com plaint is t herefore barred by res j udicat a and shall be dism issed. I T I S THEREFORE ORDERED t hat Defendant s’ m ot ions t o dism iss ( Dks 9, 11) are grant ed and t hat Plaint iff’s com plaint is hereby dism issed. Dat ed t his 10 t h day of March, 2015, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 9
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