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Wolfbauer v. Ocwen Loan Servicing, LLC

United States District Court, D. Nebraska

June 27, 2019

JAMES WOLFBAUER, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          John M. Gerrard Chief United States District Judge.

         This 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 against him.

         BACKGROUND

         Wolfbauer sued Ocwen in this Court in January 2018, in No. 8:18-cv-13.[1] 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).[2]

         Wolfbauer 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.

         STANDARD OF REVIEW

         A 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 allegation. Id.

         When 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).

         DISCUSSION

         Res 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).[3] 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).

         Wolfbauer's 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.

         Wolfbauer 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, ...


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