United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
matter is before the Court on defendant Ocwen Loan
Servicing's motion to dismiss (filing 20) the claims
asserted against it by the plaintiff, James Wolfbauer. The
Court will grant that motion and dismiss Wolfbauer's
claims against Ocwen. In addition, because Wolfbauer's
complaint is plainly barred by res judicata, the Court will
dismiss his claims in their entirety and enter judgment
sued Ocwen in this Court in January 2018, in No.
8:18-cv-13. He even alleges as much. Filing 1 at 9-19.
As his "Cause of Action" he alleged "Violation
of Nebraska Statute 76-1008," premised on Ocwen's
alleged failure to satisfy the notice requirements of the
Nebraska Trust Deeds Act in association with a November 21,
2017 trustee's sale of Wolfbauer's property. Filing 1
at 13. As relief, Wolfbauer prayed for the sale to be set
aside, that Ocwen be enjoined from taking possession of the
property, and for damages. Filing 1 at 14. But the Court
granted Ocwen's motion for summary judgment, finding that
the undisputed material facts proved Ocwen had complied with
the notice provisions of the Nebraska Trust Deeds Act.
Wolfbauer v. Ocwen Loan Servicing, LLC, No.
8:18-CV-13, 2019 WL 454108 (D. Neb. Feb. 5, 2019),
reconsideration denied, 2019 WL 1129461 (D. Neb.
Mar. 12, 2019).
filed the instant case a few weeks after the Court dismissed
his previous suit. Filing 1. As his "Cause of
Action" he alleges "Violation of Nebraska Statute
76-1008," premised on Ocwen's alleged failure to
satisfy the notice requirements of the Nebraska Trust Deeds
Act in association with a November 21, 2017 trustee's
sale of Wolfbauer's property. Filing 1 at 5-6. As relief,
Wolfbauer prays for the sale to be set aside, that Ocwen be
enjoined from taking possession of the property, and for
damages. Filing 1 at 6-7. Ocwen moves to dismiss
Wolfbauer's complaint, arguing that it is barred by res
judicata. Filing 20.
complaint must set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). This standard does not require detailed
factual allegations, but it demands more than an unadorned
accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint need not contain detailed factual
allegations, but must provide more than labels and
conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For the purposes of a
motion to dismiss a court must take all of the factual
allegations in the complaint as true, but is not bound to
accept as true a legal conclusion couched as a factual
deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the
Court is normally limited to considering the facts alleged in
the complaint. But Rule 12(b)(6) motions are not
automatically converted into motions for summary judgment
simply because additional matters are submitted in support of
the motion. Sorace v. United States, 788 F.3d 758,
767 (8th Cir. 2015). Specifically, the Court may take
judicial notice of public records and consider them on a
motion to dismiss. Humphrey v. Eureka Gardens Pub.
Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018). And
court records are matters of public record. See Greenman
v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015); Levy
v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).
judicata, or claim preclusion, operates to preclude a party
from relitigating the same cause of action. Lundquist v.
Rice Mem'l Hosp., 238 F.3d 975, 977 (8th Cir.
2001). As the Eighth Circuit has explained,
[c]laim preclusion applies when there is a prior judgment
rendered by a court of competent jurisdiction, that prior
judgment was final and on the merits, and it involved the
same cause of action and the same parties or privies. Res
judicata bars claims that were or could have been litigated
in the earlier proceeding, but it does not apply to claims
that did not exist when the first suit was filed.
Wedow v. City of Kansas City, 442 F.3d 661, 669 (8th
Cir. 2006) (citations omitted).
claims against Ocwen could not be more clearly barred: his
claim in this case is identical to the one that the Court
previously dismissed on the merits. Wolfbauer nonetheless
asserts that this case "brings forth a claim that was
not litigated in the previous action: 'Violation of
Nebraska Statute 76-1008.'" Filing 27 at 3. But that
precise claim-using those precise words-was asserted in his
previous complaint. Filing 1 at 13. Wolfbauer insists that
"[t]he current issue (the defective notice of
default/foreclosure) was never litigated and did not have a
chance to be brought up previously"-but that's
literally exactly the same issue the Court resolved against
Wolfbauer on the merits.
does add a couple of factual allegations, claiming that an
entity called "Altisource" was hired to evict him,
and unlawfully damaged his personal property in the process.
Filing 1 at 4-5. That might be a new claim, if Wolfbauer was
suing Altisource for damaging his personal property, but
Altisource isn't named as a defendant, ...