DAVID T. THUMA, Bankruptcy Judge.
In this adversary proceeding, Plaintiffs claim that Defendants wrongfully attempted to foreclose on their house. After taking evidence and hearing arguments of counsel during a three day trial, the Court concludes that Plaintiff's claims are no longer viable because of their failure to defend the foreclosure action, schedule their claims against Defendants in their first bankruptcy case, and pursue the claims within the applicable limitations period. The Court sympathizes with Plaintiffs. However, under the circumstances of their case the Court cannot grant any relief. The Court therefore will enter judgment in Defendants' favour on all counts.
The Court finds the following facts:
1. Plaintiffs executed a promissory note ("Note") and a mortgage encumbering their house ("Mortgage") on or about October 27, 1997, in favour of Oakwood Acceptance Corporation ("Oakwood").
2. The Mortgage contains the following language:
(the "Required Cure Notice").
3. Oakwood assigned the Mortgage to PNC Bank on February 1, 1998. PNC Bank assigned the Mortgage to Chase Manhattan Trust Company ("Chase") on or about January 24, 2004.
4. Oakwood transferred servicing of the loan to defendant Vanderbilt Mortgage and Finance, Inc. ("VMF") on April 13, 2004.
5. Sometime thereafter, Bank of New York Mellon ("BNYM") became the holder of the Note and the owner of the Mortgage.
6. VMF — as servicer — took all the actions at issue in this adversary proceeding. BNYM was a passive owner of the loan.
7. Plaintiffs' loan payments were somewhat sporadic. Plaintiffs sometimes fell a month or two behind, and on one occasion obtained a two-month payment moratorium.
8. VMF kept collection notes documenting its efforts to collect loan payments from Plaintiffs ("Collection Notes").
9. In or around June, 2004, one of VMF's collection agents had a misunderstanding with Plaintiffs, which occurred during a telephone call. Plaintiffs were in a truck on a freeway in California. Mr. Baker was driving the truck; he drove a truck part time to earn extra income. Mrs. Baker was with him, in the passenger seat. Mrs. Baker spoke to the collection agent on her cell phone while Mr. Baker drove. During the conversation, the agent thought Mrs. Baker called him a bad name, when in fact Mrs. Baker had referred to a driver in another vehicle who had just cut them off.
10. It appears that, as a result of the misunderstanding and resulting antagonism, the collection agent was able to get VMF to declare Plaintiffs' loan in default and refuse further payments.
11. Plaintiffs wrote a check to VMF dated May 24, 2004 in the amount of $720. VMF received the check on or about June 3, 2004, but because of the decision to declare the loan in default, VMF refused to accept it.
12. Plaintiffs sent another check to VMF dated June 17, 2004, in the amount of $2,158.25. VMF received the check on June 21, 2004 but for the same reason refused to accept it.
13. VMF did not give Plaintiffs the Required Cure Notice before refusing the loan payments and accelerating the loan.
14. Plaintiffs retained counsel in May, 2004. Counsel sent letters to VMF on May 13 and June 16, 2004, asserting inter alia that VMF had failed to give notice of default and an opportunity to cure, wrongfully declared a default, and wrongfully accelerated the loan balance.
15. VMF retained New Mexico foreclosure counsel, who filed a foreclosure complaint on August 18, 2004 in New Mexico's Third Judicial District Court, commencing JPMorgan Chase Bank, as Trustee, v. Howard G. Baker and Fannie M. Baker, CV 2004-1028 (the "Foreclosure Action"). VMF was not a party.
16. Plaintiffs filed a pro se "Response to Foreclosure" on October 1, 2004. Plaintiffs did not assert any counterclaims.
17. BNYM filed a motion for summary judgment on February 28, 2005 (the "MSJ"). The MSJ contained the following errors:
a. Plaintiffs' address was wrong;
b. The letter attached as
c. BNYM represented that it made demand on Plaintiffs to cure their defaults under the Note and Mortgage. No written demand/notice of cure period was made;
d. BNYM represented that VMF never received Plaintiffs' $2,168 check. In fact, Plaintiffs sent the check, but VMF refused to accept it;
e. BNYM represented that VMF obtained Plaintiffs' consent to the two "JIT" withdrawals from Plaintiffs' bank account. In fact, Plaintiffs either authorized no JIT transfers, or only one;
f. BNYM stated that the payments sent by the Plaintiffs to VMF in June, 2004 were insufficient to reinstate the account. That appears to be untrue. Also, it was misleading because it implied that BNYM had validly accelerated the debt, and/or validly declared a default; and
g. BNYM represented that VMF never received letters demanding that VMF not call the Plaintiffs as work. That is not true.
18. Plaintiffs retained new counsel when the MSJ was filed and provided her a copy of it.
19. Although Plaintiffs thought their new counsel was going to defend the Foreclosure Action, she never entered her appearance, responded to the MSJ, or attended the summary judgment hearing.
20. The state court entered a judgment in favour of BNYM (the "Foreclosure Judgment") on March 7, 2005. The judgment was entered before Plaintiffs' deadline to respond to the MSJ expired.
21. The state court held a hearing on the MSJ on March 16, 2004, and determined to let the Foreclosure Judgment stand. Neither Plaintiffs nor their counsel appeared.
22. The appointed special master scheduled a foreclosure sale for April 9, 2005.
23. On April 4, 2005, Plaintiffs filed the first of three bankruptcy cases, a chapter 7 case (no. 05-12627) (the "Chapter 7 Case").
24. Plaintiffs did not list any claims against Defendants in their bankruptcy schedules.
25. The Chapter 7 Case was closed and the discharge entered on August 1, 2005.
26. The special master rescheduled the foreclosure sale for August 23, 2005.
27. Plaintiffs filed a chapter 13 case on August 22, 2005 (case no. 05-16720) (the "First Chapter 13 Case").
28. Plaintiffs did not make their Chapter 13 plan payments as agreed, and on August 20, 2008 the First Chapter 13 Case was dismissed. The case was reopened on December 31, 2008, but was again dismissed on February 10, 2009.
29. On May 19, 2009, Plaintiffs, through new counsel (their fifth), filed a motion in the Foreclosure Action to set aside the Foreclosure Judgment under Rule 60(b), arguing excusable neglect (Rule 60(b)(1)) and the "catch-all" ground (Rule 60(B)(6)).
30. The state court held a hearing on the motion on June 24, 2009. On July 9, 2009, the state court entered an order denying the motion.
31. The special master thereupon rescheduled the foreclosure sale.
32. Plaintiffs filed this case on July 10, 2009, represented by their sixth attorney.
33. Plaintiffs listed possible claims against Defendants in their bankruptcy schedules.
34. VMF filed a proof of claim in the case on BNYM's behalf on July 27, 2009, for $82,100.79.
35. Plaintiffs objected to the claim on January 10, 2010.
36. The Collection Notes indicate that in or about April, 2011, Defendants discovered that VMF never sent the Required Cure Notice before accelerating the amounts due, refusing tendered payments, and filing the Foreclosure Action.
37. VMF amended the claim on March 2, 2010, reducing the claim amount to $80,721.04, and amended it again on June 10, 2010, reducing the amount to $63,956.26.
38. On June 20, 2011, Plaintiffs withdrew their objection to the claim. The withdrawal was signed by both Plaintiffs' counsel and Defendants' counsel, and states in part:
39. On June 16, 2011, Defendants' counsel sent an e-mail to Plaintiffs' counsel stating:
40. Plaintiffs commenced this adversary proceeding on August 16, 2011, asserting claims for breach of contract (including breach of the implied covenant of good faith and fair dealing); the intentional infliction of emotional distress (the "IIED claim"); and violation of New Mexico's Unfair Trade Practices Act, NMSA § 57-12-1 et seq. (the "UTPA claim").
41. Claims related to VMF's failure to give the Required Cure Notice and refusal to accept payments arose no later than August 18, 2004, when the Foreclosure Action was filed.
The Court has an independent duty to confirm its subject matter jurisdiction. In re Hook, 391 B.R. 211 (10
Claims, whether scheduled or not, become property of the estate when a debtor files a chapter 7 bankruptcy case. 11 U.S.C. § 541(a)(1). When the bankruptcy case is closed, "any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title." 11 U.S.C. § 554(c). On the other hand, unscheduled assets are not abandoned, and remain estate property after a case is closed. See Vreugdenhill v. Navistar Int'l Trans. Corp., 950 F.2d 524, 526 (8th Cir.1991); Clementson v. Countrywide Financial Corp., 2011 WL 1884715, at *5 (D. Colo. 2011), aff'd, 464 Fed. Appx. 706 (10
The doctrine of judicial estoppel is an alternative theory that prevents Plaintiffs from pursuing claims that were not scheduled in the Chapter 7 Case, thus depriving them of standing. See, e.g., Eastman v. Union Pacific R. Co., 493 F.3d 1151, 1157-59 (10
Under either theory the Court finds that, to the extent Plaintiffs owned any viable claims when they filed the Chapter 7 Case, Plaintiffs lost ownership of the claims by not scheduling them. All such claims remain property of the Chapter 7 estate.
During the trial, Plaintiffs' counsel represented to the Court that he recently spoke to the former trustee in the Chapter 7 Case, and that the trustee had agreed to allow Plaintiffs to proceed. This does not change the result. The former trustee is no longer the trustee; he was discharged when the Chapter 7 case was closed in 2005 and therefore had no authority to speak on behalf of the estate. Further, even if the Chapter 7 Case had been reopened and the trustee reappointed, Plaintiffs would have had to file amended schedules listing the claims, and the trustee would have had to obtain court approval to abandon or compromise the claims, after giving creditors an opportunity to object. There is no evidence that any of these steps were taken.
Defendants also argued that Plaintiffs' claims are barred by the applicable statutes of limitation. The following claims asserted by Plaintiffs have the following limitations periods:
To the extent Plaintiffs' claims are based on VMF's actions taken before the Foreclosure Action was filed, the statute of limitations expired on or about August 18, 2007 (the IIED claim); August 18, 2008 (the UTPA claim); or August 18, 2010 (the breach of contract claim).
Plaintiffs argue that the limitations period was extended by 11 U.S.C. § 108(a),
The claim objection withdrawal (signed by Defendants' counsel) states that Plaintiffs' claims against VMF
Finally, Plaintiffs point to a June 16, 2011 e-mail from Defendants' counsel, which states: "if you are going to file an Adversary please wait close to the 60 days. I would appreciate it." It is not clear what Defendants' counsel meant by "the 60 days." Did she really mean to say "the 30 days?" Did she intend to extend the limitations period for 60 days after June 16? It is difficult to find that an informal, vague e-mail message constituted an extension of the statute of limitations. In any event, the extended period would have ended August 15, 2011 (a Monday). Plaintiff filed their complaint the next day.
All in all, even assuming Plaintiffs owned the breach of contract claims on the petition date, such that § 108(a) granted an extension of two years from the order for relief, and even giving Plaintiffs the benefit of every reasonable doubt, the Court must find that the Complaint was not filed within the limitations period for contract claims, so the contract claims against BNYM are time-barred.
C. Rooker-Feldman. Another hurdle Plaintiffs face is the Rooker-Feldman doctrine. As the Tenth Circuit explained in In re Staker, 2013 WL 2233908, at *2 (10
Here, Plaintiffs lost in state court in 2005, sought to have the Foreclosure Judgment set aside in 2009, and lost again. The Plaintiffs now ask this Court to grant them money damages because Defendants improperly foreclosed. To the extent such claims are not barred by res judicata and/or Rule 13 principles, they are precluded by the Rooker-Feldman doctrine.
Some courts have held that the Rooker-Feldman doctrine permits parties to argue that a state court judgment was obtained through fraud. See, e.g., Drake v. St. Paul Travelers Ins. Co., 2009 WL 4035470, at *3 (5
See also Tal v. Hogan, 453 F.3d 1244, 1256 (10
Further, the Rooker-Feldman doctrine prevents Plaintiffs from pursuing their claims against VMF. Such claims clearly attack the Foreclosure Judgment as improperly entered, and are "inextricably intertwined" with the judgment. The Court cannot grant Plaintiffs relief against VMF without "reviewing and rejecting" the Foreclosure Judgment.
Defendants argue that Plaintiffs' claims are barred by the doctrines of claim and/or issue preclusion.
1.
"Federal courts give the same preclusive effect to state court judgments that those judgments would be given in the state court from which they emerged." Strickland, 130 F.3d at 1411 (citing Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 (1982)). Under New Mexico law, claim preclusion requires four elements: "(1) the same party or parties in privity; (2) the identity of capacity or character of persons for or against whom the claim is made; (3) the same subject matter; and (4) the same cause of action in both suits." Strickland, 130 F.3d at 1411, citing Myers v. Olson, 100 N.M. 745, 676 P.2d 822, 824 (1984). Claim preclusion also bars consideration in a subsequent suit of all matters that "could properly have been raised in the prior case." Blea v Sandoval, 107 N.M. 554, 557, 761 P.2d 432, 435 (Ct. App. 1988); In re: Mucci, 488 B.R. 186, 199 (Bankr. D.N.M. 2013) (citing Blea). With regard to a defendant's claims, the "could have been raised" language refers to compulsory counterclaims. See, e.g., King v. Deutsche Bank Nat. Trust Co., 2013 WL 3871067, at *3 (Tex. App. 2013) (res judicata only bars relitigation of counterclaims only if they were compulsory); Fason v. Trussell Enterprises, Inc., 2013 WL 4516674, at *3 (Miss. App. 2013) (same); Wickenhauser v. Lehtinen, 302 Wis.2d 41, 60, 734 N.W.2d 855, 865 (2007) (same); 67-25 Dartmouth Street Corp. v. Syllman, 29 A.D.3d 888, 890, 817 N.Y.S.2d 299, 301 (2006) (same).
The treatment of omitted compulsory counterclaims is also dealt with by New Mexico Rule 1-013(A). Rule 1-013(A) bars a defendant from pursuing claims that were compulsory counterclaims in prior litigation but were not asserted. Slide-A-Ride of Las Cruces, Inc. v. Citizens Bank of Las Cruces, 105 N.M. 433, 733 P.2d 1316 (1987) (since counterclaims were compulsory in the first action, they could not be raised in a later action); Romero v. Onewest Bank, FSB, 2013 WL 5309570 (N.M. App. 2013) (unpublished) (same, citing Slide-A-Ride); Adams v. Key, 145 N.M. 52, 193 P.3d 599 (Ct. App. 2008) (same). The rule is the same under the Federal Rules of Civil Procedure. See Avemco Ins. Co. v. Cessna Aircraft Co., 11 F.3d 998, 1000 (10
The facts in Romero are similar to the facts in this adversary proceeding. In Romero, a lender brought a foreclosure action and obtained a default judgment. Two years later, the borrowers filed an action against the lender, alleging fraud and deceit, negligent misrepresentation, unfair trade practices, and intentional infliction of emotional distress. The lender moved to dismiss, arguing that the claims were barred. The trial court granted the motion to dismiss and the borrowers appealed. The New Mexico Court of Appeals affirmed, holding:
2013 WL 5309570, at *3.
Plaintiffs' claims against BNYM
The Court rules that Plaintiffs' claims against BNYM are barred by claim preclusion and/or the bar created by New Mexico Rule 1-013.
Summary judgment, whether or not contested by the party to be estopped, is sufficient to satisfy the "actually litigated" element. In In re Johnson, 2007 WL 646376, at *3 (S.D. Tex. 2007), the district court stated:
See also Arbelaez v. Singleton, 2013 WL 4532608, at *2 (Ct. App. 2013) (affirming trial court's use of summary judgment as basis for collateral estoppel); Cordova v. State, Taxation and Revenue, Property Tax Div., 136 N.M. 713, 723, 104 P.3d 1104, 1114 (Ct. App. 2004) (use of summary judgment for collateral estoppel is acceptable).
Here, even if Plaintiffs' claims against BNYM were not subject to claim preclusion, the Court rules in the alternative that relitigation of the key fact issues underlying the claims is barred by collateral estoppel. The Foreclosure Judgment contains detailed findings of fact. These findings, which include that (i) Plaintiffs were in default, (ii) BNYM made demand, (iii) Plaintiffs failed to cure the default, and (iv) BNYM consequently exercised its right to accelerate the loan balance and foreclose the Mortgage, preclude Plaintiffs' claims. The state court also found that Plaintiffs "have not alleged any facts or legal theory that constitutes a legal defense to foreclosure of the Mortgage." Plaintiffs could not prevail on any of their claims unless the Court ignored the state court's findings. Collateral estoppel principles prevent this.
3.
878 F.2d at 1274. See also Fox v. Maulding, 112 F.3d 453, 459 (10
Here, VMF was in privity with BNYM with respect to Plaintiffs' claims. All of the acts Plaintiffs complain about were committed by VMF, as BNYM's servicing agent. Only VMF dealt with Plaintiffs, made collection calls, declared the loan in default, accelerated the amounts due, refused payments, retained foreclosure counsel, and took the other actions described above. BNYM did nothing. Further, Plaintiffs' complaint does not differentiate between the Defendants in the factual allegations or the request for relief—Defendants are lumped together. For the purposes of this litigation, VMF and BNYM are essentially the same. Given all the facts of this matter, it is reasonable to hold that VMF is in privity with BNYM for claim and issue preclusion purposes. Plaintiffs' claims against VMF therefore are barred.
The analysis and result are the same under Rule 13(a) claim preclusion. See Transamerica v. Aviation Office, 292 F.3d at 389-93 (holding that the doctrine barring subsequent claims applies not only to the original named plaintiff but also those in privity with it); Avemco Ins. Co. v. Cessna Aircraft Co., 11 F.3d 998 (10
The final question is whether Plaintiffs proved any claims against Defendants based on Defendants' actions after April 4, 2005. The Court concludes that Plaintiffs did not. Plaintiffs' complaint allegations and trial evidence focus almost entirely on VMF's 2004 actions. Plaintiffs made little effort to allege or prove that Defendants' post- April, 2005 conduct was actionable.
The only significant evidence regarding Defendants' post-2005 conduct is that in about April, 2011, Defendants determined that VMF apparently never had sent the Required Cure Notice. Did BNYM have a duty (perhaps under the implied covenant of good faith and fair dealing), upon discovering VNF's 2004 servicing lapses, to compensate Plaintiffs for damages caused thereby? While the argument has some appeal, the Court does not believe it could infer such an obligation without eviscerating the six-year statute of limitations for contract claims. Further, such a rule would create an unhealthy incentive for contracting parties
It should be mentioned, moreover, that it appears BNYM did compensate Plaintiffs to some extent. Shortly after this case was filed, BNYM filed a secured proof of claim for $82,100.79, which included an asserted pre-petition arrearage of $7,744.02. BNYM later agreed to reduce its claim to $63,956, and also to withdraw any claim for pre-petition arrearage. The resulting difference between the original claim and the amended claim is $18,144.79.
Plaintiffs encountered a series of unfortunate, avoidable procedural problems that caused them to lose all their claims against Defendants. While Plaintiffs' ultimate goal of saving their house has been achieved, Plaintiffs cannot at this late date recover damages beyond what BNYM has conceded.
A separate judgment will be entered in Defendants' favor on all counts.