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Tonea v. Nationstar Mortgage, LLC

United States District Court, N.D. Georgia, Atlanta Division

June 21, 2018

MIRCEA F. TONEA, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge John K. Larkins, III's Final Report and Recommendation [5] (“Final R&R”), which recommends granting Defendant Nationstar Mortgage, LLC's (“Defendant”) Motion to Dismiss [3] and dismissing the action with prejudice.

         I. BACKGROUND

         On October 18, 2017, Plaintiff Mircea F. Tonea (“Plaintiff”), proceeding pro se, filed his “Verified Complaint for Lack of Standing to Foreclose, Fraud in the Concealment, Fraud in the Inducement, Unconscionable Contract, Breach of Contract, Breach of Fiduciary Duty, Slander of Title, Damages and Relief” [1] (the “Complaint”). This is the fifth lawsuit filed by Plaintiff in an attempt to avoid a foreclosure sale of property located at 1845 Oak Wind Lane, Buford, Georgia, and at least Plaintiff's third case against his mortgage servicer, Defendant.[1] Plaintiff's Complaint contains a “rambling hodgepodge of legal and factual assertions[, ]” which “principally challenges the manner in which his mortgage loan was securitized and assigned following its origination in 2004.” (See generally [1]; see also [5] at 3). Plaintiff alleges a number of state law claims against Defendant and seeks damages and declaratory relief. ([1] at 19-41).

         On November 13, 2017, Defendant filed its Motion to Dismiss. In it, Defendant argues Plaintiff's Complaint is an impermissible shotgun pleading and fails to state a claim upon which relief can be granted. ([3.1] at 4-7). Defendant, in the alternative, argues Plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel. (Id. at 7-10). Plaintiff did not file a response to the Motion to Dismiss. On January 26, 2018, the Magistrate Judge issued the Final R&R, recommending granting Defendant's Motion to Dismiss on the grounds that Plaintiff's Complaint is barred by the doctrine of res judicata. ([5] at 3). The parties did not file objections.

         II. DISCUSSION

         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Jeffrey S. by Ernest S v. State Bd. of Educ. Of State of Ga., 896 F.2d 507, 512, 513 (11th Cir. 1990). Where, as here, there have been no objections filed, the Court reviews for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

         B. Analysis

         The Magistrate Judge ultimately concluded Plaintiff's Complaint is barred by the doctrine of res judicata. “[R]es judicata can be applied only if all of four factors are shown: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.” E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004) (quotation omitted). An earlier decision precludes not only identical claims, but also all legal theories and claims that could have been raised earlier and that “aris[e] out of the same nucleus of operative fact.” Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1247 (11th Cir. 2014). The court may consider the defense of res judicata on a motion to dismiss filed under Rule 12(b)(6) when the existence of the defense can be determined from the face of the complaint. See Solis v. Global Acceptance Credit Co., 601 Fed.Appx. 767, 771 (11th Cir. 2015). The court may also take judicial notice of its own records in resolving a motion to dismiss. Id.

         The Magistrate Judge found the first factor of the res judicata doctrine satisfied because the decision in Tonea IV was rendered by this Court, “which is unquestionably a court of competent jurisdiction.” ([5] at 5). The Magistrate Judge next found the second factor satisfied because “the Court's decision in Tonea IV was a final judgment on the merits. “ (Id.). The Magistrate Judge further found the third factor satisfied because “the parties in this action are identical to those in Tonea IV.” Finally, the Magistrate Judge found the fourth factor satisfied because “the instant case plainly concerns the same set of facts and legal complaints as Tonea IV.” (Id. at 6). The Magistrate Judge concluded that Defendant “demonstrated that the four res judicata factors are met, ” and, therefore, its Motion to Dismiss is “due to be granted.” ([5] at 7). The Court finds no plain error in the Magistrate Judge's findings or recommendation.

         III. CONCLUSION

         For the foregoing reasons, IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins, III's Final Report and Recommendation [5] is ADOPTED.

         IT IS FURTHER ORDERED that Nationstar Mortgage, LLC's Motion to Dismiss [3] is GRANTED and ...


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