Acceleration

Hadley’s 11 Year Litigious Battle Halted by Fifth Circuit Without Chiding

Res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.

Hadley v. Bank of N.Y. Mellon (5th Cir.)

NOV 24, 2021 | REPUBLISHED BY LIT: NOV 25, 2021

Despite a laundry list of bankruptcy and civil action filings, no lawyer representing the homeowner, or Hadley himself in this case, were chided for bringing what the court effectively is asserting as a frivolous lawsuit or threatened with sanctions.

“Having been advised that Hadley no longer wishes to pursue his claims against Ditech Financial, this case is dismissed with prejudice. Case terminated on 2/13/2017. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 02/13/2017).”

JONES, EDITH H.

DAVIS, W. EUGENE

ELROD, JENNIFER W.

Before Davis, Jones, and Elrod, Circuit Judges. Per Curiam:*

Conrell Hadley appeals the district court’s summary judgment in favor of Defendants, the Bank of New York Mellon, as Trustee, and Carrington Mortgage Services, L.L.C.

Because Hadley’s claims are barred by the doctrine of res judicata, we AFFIRM.1

BACKGROUND

In 1989, Hadley bought the property located at 6908 Fox Mesa Lane in Humble, Texas. In October 2004, Hadley executed a note and home equity deed of trust promising to repay a $72,000 loan and granting a lien against the property to America’s Wholesale Lender, the mortgagee.

In December 2016, after the mortgagee applied for a foreclosure order, Hadley filed suit in state court against Ditech Financial, L.L.C., f/k/a Green Tree Servicing, L.L.C. (“Ditech”), the mortgage servicer, contesting the defendant’s right to foreclose. Hadley asserted claims for breach of contract, alleging that Ditech failed to abide by certain provisions in the deed of trust before proceeding with foreclosure. Hadley also alleged that Ditech failed to comply with certain federal statutes and regulations, as well as state laws, prior to applying for foreclosure.

Ditech removed the action to federal district court. Thereafter, Hadley moved to voluntarily dismiss all of his claims against Ditech without prejudice.

After the district court conducted a conference with the parties, however, the district court entered a “Final Dismissal” on February 13, 2017, which provided:

“Having been advised that Conrell Hadley no longer wishes to pursue his claims against Ditech Financial, LLC, this case is dismissed with prejudice.” (emphasis added).

No appeal from the final dismissal was taken.

In June 2020, Hadley filed the instant suit in state court against the Bank of New York Mellon (“Bank”), which he alleged was the “current purported ‘mortgagee’ of the mortgage loan” relating to his property. He also sued Carrington Mortgage Services, L.L.C. (“Carrington”), which he alleged was the “current purported mortgage servicer” of the mortgage.

Hadley contended that Defendants first sent him a notice of acceleration of the loan on July 15, 2010, and that because Defendants had not sought foreclosure within four years of that date, any foreclosure sale would be time- barred and consequently the deed of trust had to “be stripped from the title record and title quieted in [his] name.”

He sought a declaratory judgment that expiration of the statute of limitations barred foreclosure, rendered the deed of trust held by Defendants void, and entitled him to quiet title relief. He also sought a permanent injunction preventing Defendants from interfering with his status as owner, as well as attorney’s fees and costs.

Defendants removed the action to federal district court and thereafter moved for summary judgment. They argued that Hadley’s claims were barred by the doctrine of res judicata. The district court agreed and granted summary judgment in favor of Defendants.

Hadley timely filed a notice of appeal.

1 We also grant defendants judicial notice.

DISCUSSION

“Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.”2 In order for res judicata to apply, four conditions must be met: “(1) the parties to both actions are identical, or in privity; (2) a court of competent jurisdiction rendered the judgment in the first action; (3) the first action concluded with a final judgment on the merits; and (4) both suits involved

2 In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999) (citation omitted).

the same claim or cause of action.”3 The res judicata effect of a prior judgment is a question of law that we review de novo.4

The district court determined that all four conditions for res judicata were met in this case. Specifically, the defendants from both of Hadley’s actions were in privity because Ditech was the mortgage servicer and the Bank was the trustee/mortgagee; the district court was of competent jurisdiction in the first action; the first action ended in a final judgment on the merits; and both actions challenged the enforcement of the same lien that secures the same loan on the same property. The district court concluded that because Hadley had the opportunity to raise his claims based on the expiration of the statute of limitations in his first action and should have, res judicata barred him from raising those claims in the instant action.

Hadley does not challenge the district court’s determination that the four elements of res judicata have been met in this case.5 Instead he argues that whether the elements have been met “is not relevant” because “the Deed of Trust is void and therefore res judicata cannot be applied to it.” He asserts the deed of trust securing the loan became void when the statute of limitations allegedly expired on July 15, 2014, and that a void deed of trust is equivalent to a void prior judgment.

3 Warren v. Mortgage Electronic Registration Systems, Inc., 616 F. App’x 735, 737 (5th Cir. 2015) (unpublished) (citation omitted). Unpublished opinions issued on or after January 1, 1996, are not precedential but may be persuasive. Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).

4 Test Masters Educ. Serv., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005).

5 Consequently, Hadley has waived any argument that the district court erred in determining that the four elements of res judicata were satisfied. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008) (noting that legal issues not briefed are waived on appeal).

In support of this argument, Hadley cites to a Texas appellate court case, McNally v. McNally,6 that is inapposite. In McNally, the appellate court determined that res judicata did not apply because the fourth condition for application of the doctrine (i.e., both suits involved the same claim or cause of action) was not present.7 The first action was a 1984 divorce proceeding in which a property-settlement agreement between the husband and wife was approved. As part of that agreement, the husband executed a promissory note in favor of the wife, which was secured by a deed of trust on property the couple owned. The second action was a challenge by the husband to the deed of trust securing the note.

The appellate court determined that the second suit was not a challenge to the property-settlement agreement, and that the husband’s payment obligation under the note would be unaffected by the validity of the deed.

Therefore, res judicata was inapplicable.8

Here, the district court determined that both of Hadley’s actions challenged the enforcement of the same lien that secures the same loan on the same property.

As stated above, Hadley does not challenge this determination.9

Hadley has not cited any other authority supporting his contention that res judicata is inapplicable here.10

Based on the foregoing, we AFFIRM the district court’s judgment.

6 No. 02-18-00142-CV, 2020 WL 5241189 (Tex. App.—Fort Worth Sept. 3, 2020).

7 See id. at *5.

8 See id.

9 Although the parties address the merits of Hadley’s limitations argument, we need not do so because any claim based on the expiration of the statute of limitations is barred by the doctrine of res judicata, as set forth above.

10 As Defendants point out, this Court has rejected similar arguments that res judicata does not apply when a lien is allegedly invalid based on the expiration of the four- year limitations period for enforcing a real property lien under Texas law.

See Underwood v. Ocwen Loan Serv., 829 F. App’x 678 (5th Cir. 2020) (unpublished); Ballard, 444 F.3d at 401 & n.7

(Unpublished opinions issued on or after January 1, 1996, may be persuasive authority.).

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U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:20-cv-02553

Hadley v. The Bank of New York Mellon et al
Assigned to: Judge Lynn N Hughes

Case in other court:  151st Judicial District Court of Harris County, Te, 20-38392

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 07/20/2020
Date Terminated: 03/24/2021
Jury Demand: Plaintiff
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity
Plaintiff
Conrell Hadley represented by Jeffrey Craig Jackson
Jeffrey Jackson & Associates, PLLC
2500 E TC Jester Blvd.
Suite 285
Houston, TX 77008
713-861-8833
Fax: 713-682-8866
Email: jeff@jjacksonllp.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDSean Robert Pink
Jeffrey Jackson & Associates, PLLC
2500 E TC Jester Blvd.
Suite 285
Houston, TX 77008
713-861-8833
Fax: 713-682-8866
Email: sean@jjacksonllp.com
ATTORNEY TO BE NOTICED
V.
Defendant
The Bank of New York Mellon
as Trustee
represented by Taylor Dominique Hennington
Akerman LLP
2001 Ross Ave.
Ste. 3600
Dallas, TX 75201
214-720-4300
Email: taylor.hennington@akerman.com
ATTORNEY TO BE NOTICEDWalter Lewis Edmond McInnis
Akerman LLP
2001 Ross Ave
Suite 3600
Dallas, TX 75201
214-720-4300
Email: walter.mcinnis@akerman.com
ATTORNEY TO BE NOTICED
Defendant
Carrington Mortgage Services, LLC represented by Taylor Dominique Hennington
(See above for address)
ATTORNEY TO BE NOTICEDWalter Lewis Edmond McInnis
(See above for address)
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
07/20/2020 1 NOTICE OF REMOVAL from 151st District Court / Harris County, case number 2020-38392 (Filing fee $ 400 receipt number 0541-24950475) filed by Carrington Mortgage Services, LLC, The Bank of New York Mellon, As Trustee. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1 – Plaintiff’s original petition, # 3 Exhibit 2 – Requests for process / citations, # 4 Exhibit 3 – Notice of Lis Pendens, # 5 Exhibit 4 – Transfer Order, # 6 Exhibit 5 – Defendants’ answer, # 7 Exhibit 6 – State court docket sheet, # 8 Exhibit 7 – civil cover sheet, # 9 Exhibit 8 – list of attorneys, # 10 Exhibit 9 – Harris county appraisal district real property account information)(McInnis, Walter) (Entered: 07/20/2020)
07/20/2020 2 CORPORATE DISCLOSURE STATEMENT by Carrington Mortgage Services, LLC, The Bank of New York Mellon, As Trustee, filed.(McInnis, Walter) (Entered: 07/20/2020)
07/21/2020 3 NOTICE of Appearance by Jeffrey C. Jackson on behalf of Conrell Hadley, filed. (Jackson, Jeffrey) (Entered: 07/21/2020)
07/21/2020 4 NOTICE in a Removed or Transferred Case (Signed by Judge Lynn N Hughes) Parties notified.(JacquelineMataadi, 4) (Entered: 07/21/2020)
07/22/2020 5 Order: Initial Conference set for 9/21/2020 at 11:00 AM in Room 11122 before Judge Lynn N Hughes. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 07/22/2020)
07/24/2020 6 Lis Pendens by Conrell Hadley, filed.(Jackson, Jeffrey) (Entered: 07/24/2020)
07/31/2020 7 NOTICE of Service of Plaintiff’s Rule 26(a)(1) Initial Disclosures by Conrell Hadley, filed. (Jackson, Jeffrey) (Entered: 07/31/2020)
09/21/2020 8 Minute Entry for INITIAL CONFERENCE held before Judge Lynn N Hughes on 9/21/2020. Order to be entered. Appearances: Jeffrey Jackson, Walter McInnis. (Court Reporter: G. Dye) (ghassan, 4) (Entered: 09/21/2020)
09/21/2020 9 ORDER to Move. By 10/2/2020, The Bank of NY Mellon may move for summary judgment. By 10/16/2020, Hadley may respond. Internal review set for 10/19/2020. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 09/21/2020)
10/22/2020 10 Order: Pretrial Conference set for 11/10/2020 at 02:00 PM in Room 11122 before Judge Lynn N Hughes. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 10/22/2020)
10/27/2020 11 MOTION for Sean R. Pink to Appear Pro Hac Vice by Conrell Hadley, filed. Motion Docket Date 11/17/2020. (Jackson, Jeffrey) (Entered: 10/27/2020)
10/27/2020 12 ORDER granting 11 Motion for Sean R. Pink to Appear Pro Hac Vice. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 10/27/2020)
11/06/2020 13 NOTICE (Joint) Regarding Order to Move re: 9 Order by Carrington Mortgage Services, LLC, The Bank of New York Mellon, filed. (McInnis, Walter) (Entered: 11/06/2020)
11/10/2020 14 Minute Entry for PRETRIAL CONFERENCE held before Judge Lynn N Hughes on 11/10/2020. Order to be entered. Appearances: Sean Pink, Walter McInnis. (Court Reporter: N. Forrest) (ghassan, 4) (Entered: 11/12/2020)
11/12/2020 15 ORDER to Move. By 11/16/2020, The Bank of NY Mellon may move for summary judgment. By 12/4/2020, Hadley may respond. Internal review set for 12/7/2020. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 11/12/2020)
11/16/2020 16 MOTION for Summary Judgment by Carrington Mortgage Services, LLC, The Bank of New York Mellon, filed. Motion Docket Date 12/7/2020. (Attachments: # 1 Exhibit, # 2 Proposed Order)(McInnis, Walter) (Entered: 11/16/2020)
11/16/2020 17 NOTICE of Appearance by Taylor D. Hennington on behalf of Carrington Mortgage Services, LLC, The Bank of New York Mellon, filed. (Hennington, Taylor) (Entered: 11/16/2020)
12/04/2020 18 RESPONSE in Opposition to 16 MOTION for Summary Judgment , filed by Conrell Hadley. (Jackson, Jeffrey) (Entered: 12/04/2020)
12/10/2020 19 REPLY to Response to 16 MOTION for Summary Judgment , filed by Carrington Mortgage Services, LLC, The Bank of New York Mellon. (McInnis, Walter) (Entered: 12/10/2020)
03/24/2021 20 OPINION on Summary Judgment terminating 16 . (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 03/24/2021)
03/24/2021 21 FINAL JUDGMENT. Hadley takes nothing from The Bank of New York Mellon and Carrington Mortgage Services. Case terminated on 3/24/2021. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 03/24/2021)
04/23/2021 22 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 21 Final Judgment by Conrell Hadley (Filing fee $ 505, receipt number 0541-26328429), filed. (Jackson, Jeffrey) (Entered: 04/23/2021)
04/26/2021 23 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 22 Notice of Appeal. Fee status: Paid. Reporter(s): N. Forrest, filed. (Attachments: # 1 Notice of Appeal) (mperez, 1) (Entered: 04/26/2021)
05/07/2021 24 DKT13 TRANSCRIPT ORDER REQUEST by Jeffrey Craig Jackson. Transcript is unnecessary for appeal purposes This order form relates to the following: 22 Notice of Appeal, filed. (Jackson, Jeffrey) (Entered: 05/07/2021)

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:17-cv-00145

Hadley v. Ditech Financial, LLC f/k/a Green Tree Servicing, LLC
Assigned to: Judge Lynn N Hughes

Case in other court:  Harris County District, 125th Judicial Dist.

Cause: 28:1441 Notice of Removal

Date Filed: 01/17/2017
Date Terminated: 02/13/2017
Jury Demand: Plaintiff
Nature of Suit: 290 Real Property: Other
Jurisdiction: Federal Question
Plaintiff
Conrell Hadley represented by Ray L Shackelford
State Bar Information
1406 Southmore Blvd
Houston, TX 77004
713-520-8484
Fax: 713-520-8192
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Ditech Financial, LLC f/k/a Green Tree Servicing, LLC represented by Nicola Marie Shiels
Email: nmshiels@gmail.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDHarry Holmes Thompson
Locke Lord LLP
600 Travis
Suite 2800
Houston, TX 77002
713-226-1200
Email: hthompson@lockelord.com
ATTORNEY TO BE NOTICEDMatthew Laurence McDougal
Locke Lord LLP
2200 Ross Avenue
Ste 2800
Dallas, TX 75201
214-740-8000
Email: matthew.mcdougal@lockelord.com
ATTORNEY TO BE NOTICEDJohnathan E Collins
Sanders Collins PLLC
325 N. St. Paul St., Suite 3100
Dallas, TX 75201
214-288-1539
Fax: 214-242-3004
Email: jcollins@sanderscollins.com
TERMINATED: 02/21/2017
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
01/17/2017 1 NOTICE OF REMOVAL from Harris County District, case number 2016-83270 (Filing fee $ 400 receipt number 0541-17796881) filed by Ditech Financial, LLC f/k/a Green Tree Servicing, LLC. (Attachments: # 1 Exhibit A – Index of Matters Being Filed, # 2 Exhibit B – Civil Cover Sheet, # 3 Exhibit C – List of All Counsel of Record, # 4 Exhibit D – State Court Docket Sheet, # 5 Exhibit D-1 – Plaintiff’s Original Petition, # 6 Exhibit D-2 – Civil Case Information Sheet, # 7 Exhibit D-3 – Civil Process Request, # 8 Exhibit D-4 – Civil Process Pick-Up Form, # 9 Errata D-5 – Defendant’s Original Answer)(Collins, Johnathan) (Entered: 01/17/2017)
01/18/2017 2 NOTICE in a Removed or Transferred Case (Signed by Judge Lynn N Hughes) Parties notified.(hcarradi, 4) (Entered: 01/18/2017)
01/18/2017 3 Order: Initial Conference set for 1/31/2017 at 10:00 AM in Room 11122 before Judge Lynn N Hughes. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 01/18/2017)
01/18/2017 4 CERTIFICATE OF INTERESTED PARTIES by Ditech Financial, LLC f/k/a Green Tree Servicing, LLC, filed.(Collins, Johnathan) (Entered: 01/18/2017)
01/18/2017 5 CORPORATE DISCLOSURE STATEMENT by Ditech Financial, LLC f/k/a Green Tree Servicing, LLC identifying Walter Investment Management Corp. as Corporate Parent, filed.(Collins, Johnathan) (Entered: 01/18/2017)
01/19/2017 6 Order Resetting Conference. Initial Conference reset for 2/13/2017 at 11:00 AM in Room 11122 before Judge Lynn N Hughes. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 01/19/2017)
02/09/2017 7 NOTICE of Appearance by Nicola M. Shiels on behalf of Ditech Financial, LLC f/k/a Green Tree Servicing, LLC, filed. (Shiels, Nicola) (Entered: 02/09/2017)
02/10/2017 8 NOTICE of Appearance by Harry Holmes Thompson on behalf of Ditech Financial, LLC f/k/a Green Tree Servicing, LLC, filed. (Thompson, Harry) (Entered: 02/10/2017)
02/10/2017 9 NOTICE of Appearance by Matthew L. McDougal on behalf of Ditech Financial, LLC f/k/a Green Tree Servicing, LLC, filed. (McDougal, Matthew) (Entered: 02/10/2017)
02/10/2017 10 MOTION to Dismiss 1 Notice of Removal,, by Conrell Hadley, filed. Motion Docket Date 3/3/2017. (Attachments: # 1 Proposed Order Proposed order)(Jarrett, LaToya) (Entered: 02/10/2017)
02/13/2017 11 Unopposed MOTION for Johnathan E. Collins to Withdraw as Attorney by Ditech Financial, LLC f/k/a Green Tree Servicing, LLC, filed. Motion Docket Date 3/6/2017. (Attachments: # 1 Proposed Order Granting Unopposed Motion to Withdraw)(Collins, Johnathan) (Entered: 02/13/2017)
02/13/2017 12 CONFERENCE MEMORANDUM: Initial conference held. Appearances: Ray Shackelford, Harry Thompson. Ct Reporter: B. Slavin. Order to be entered. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 02/13/2017)
02/13/2017 13 Final DISMISSAL terminating 10 . Having been advised that Hadley no longer wishes to pursue his claims against Ditech Financial, this case is dismissed with prejudice. Case terminated on 2/13/2017. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 02/13/2017)
02/21/2017 14 ORDER Allowing Withdrawal. Johnathan E. Collins is withdrawn as counsel for Ditech Financial 11 . (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4) (Entered: 02/21/2017)

Hadley v. Bank of N.Y. Mellon,

Civil Action H-20-2553 (S.D. Tex. Mar. 24, 2021)

Lynn N. Hughes United States District Judge

Opinion on Summary Judgment 1. Background.

On October 21, 2004, Conrell Hadley signed a home equity loan with America’s Wholesaler lender — which are now owned by The Bank of New York Mellon and Carrington Mortgage Services, LLC — for $72,000.

(a) July 15, 2010: after Hadley stopped making timely payments on the loan, the Bank sent him notices of default and acceleration.

(b) December 6, 2010: Hadley filed for chapter 13 bankruptcy to avoid the foreclosure. It was dismissed five months later.

(c) April 23, 2012: the Bank non-suited the foreclosure case – abandoning the 2010 acceleration,

(d) December 11, 2012: the Bank served a second notice of acceleration.

(e) March 2, 2015: Hadley again filed for chapter 13 bankruptcy. He did not list the property at issue. The case was dismissed two months later.

(f) January 20, 2016: the Bank sent a third notice of acceleration.

(g) June 13, 2016: the Bank applied for foreclosure for a second time.

(h) December 2, 2016: Hadley sued in state court to stop the foreclosure. The case was removed to this court — 4:17-cv-145 Conrell Hadley v. Ditech Financial, LLC.

(i) December 9, 2016: the third notice of acceleration was rescinded.

(j) February 13, 2017: the federal court case, 17-cv-145, was dismissed with prejudice.

(k) December 5, 2017: Hadley filed for chapter seven bankruptcy to stop a foreclosure on his property. He again did not list this property in his bankruptcy. The bankruptcy was discharged seven months later.

(l) March 28, 2019: the Bank sent a fourth notice of acceleration.

(m) February 12, 2020: the Bank applied for foreclosure again.

Hadley’s 11 Year Litigious Battle Halted by Fifth Circuit Without Chiding
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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