Homeowner is Threatened by Judge Robert Pitman for Defending Foreclosure Removed to W.D. Tex. Federal Court

Sissom v. Countrywide Home Loans, Inc., No. 20-50392

(5th Cir. Jan. 12, 2021)

 REPUBLISHED BY LIT: SEP 9, 2021

I

In 2006, Sissom obtained a mortgage from Countrywide Home Loans, Inc., d/b/a America’s Wholesale Lender (“Countrywide”), which was subsequently assigned to the Bank of New York Mellon (“BNYM”) (we refer to BNYM and Countrywide together as the “Bank Defendants”).

In 2017, Sissom defaulted and was informed her home would be sold in foreclosure. Seeking to block the sale, Sissom brought suit in Texas state court against the same defendants as here. Her case was removed to federal court.

See Sissom v. Countrywide Home Loans, Inc., No. 1:17-CV-449, 2017 WL 8182807 (W.D. Tex. Aug. 17, 2017).

After Sissom unsuccessfully challenged the district court’s jurisdiction, the court dismissed her suit for failure to state a claim. She appealed, challenging “only the district court’s exercise of jurisdiction,” and we affirmed.

Sissom v. Countrywide Home Loans, Inc., 772 F. App’x 75, 76 (5th Cir. 2019).

Sissom then filed the instant suit in Texas state court.

The Bank Defendants again removed to federal court and Sissom moved to remand, pointing to a non-diverse defendant, G. Tommy Bastian, a Texas attorney listed as trustee on the original deed of trust. (BDF Law Group).

The Bank Defendants opposed remand, contending Bastian was improperly joined.

They also moved to dismiss. Adopting the magistrate judge’s recommendation, the district court ruled Bastian was not a proper party and so denied the motion to remand. The court then granted the motion to dismiss.

Sissom appeals. We review both rulings de novo.

See Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 744 (5th Cir. 2010);

Kling Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir. 2009).

II

We begin with the motion to remand because it concerns jurisdiction.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-97 (1998).

Sissom correctly notes that the presence of “one [opposing] party from the same state [as the plaintiff] is enough to defeat diversity jurisdiction.”

See, e.g., Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (28 U.S.C. § 1332 mandates “complete diversity between all plaintiffs and all defendants”).

The non-diverse defendant, however, must have been “properly joined.”

Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc).

Otherwise, “the court may disregard the citizenship of that defendant, dismiss the non-diverse defendant from the case, and exercise subject matter jurisdiction over the remaining diverse defendant[s].”

Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016).

The district court correctly applied that principle here.

The court reasoned that Sissom had not alleged “any cause of action against Bastian” or even that “Bastian [had] committed any act of wrongdoing.”

This establishes that Bastian was not “properly joined” for purposes of diversity jurisdiction.

See Smallwood, 385 F.3d at 573 (improper joinder is shown by the “inability of the plaintiff to establish a cause of action against the non-diverse party in state court”) (quotation marks omitted);

see also Flagg, 819 F.3d at 136 (“Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.”).

As the court observed, “district courts . . . routinely disregard the citizenship of trustees in foreclosure cases when the underlying complaint alleges no wrongdoing by the trustees.”

The district court therefore correctly denied Sissom’s motion to remand.

THE BLIND EYE: “Failure to maintain policies regarding (a) investigating and responding to borrower complaints; (b) maintaining accurate and complete information regarding activities of foreclosure attorneys; (c) transferring accurate borrower information to new servicer (RESPA)” pic.twitter.com/U4kwgcbnE5

— LawsInTexas (@lawsintexasusa) August 26, 2021

We turn to the merits.

As relevant here, the district court ruled Sissom’s suit was barred by res judicata.

The court reasoned that Sissom “appear[ed] to be rehashing her previous allegations,” which the court had rejected as legally insufficient in Sissom’s prior case.

See Sissom v. Countrywide Home Loans, Inc., No. 1:17-CV-449, (W.D. Tex. Mar. 26, 2018) (Order, ECF. No. 21)

(“Even under the liberal reading afforded to pro se plaintiffs, the Court is unable to infer a cause of action from the facts alleged in the proposed amended complaint.”).

The district court was correct.

Sissom seeks to relitigate the same claims, against the same parties, involving the same factions, after receiving a final judgment on the merits of those claims (which she failed to appeal).

See Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992)

(“Res judicata . . . prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that . . . should have been litigated in the prior suit.”).

Sissom offers no reason why res judicata does not bar her claims here.

Accordingly, the district court’s judgment is AFFIRMED.