Appellate Circuit

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

When Tommy Bastian is included as a party by a homeowner, the judges rally around like the US Marshals to protect their friend of the court.

LIT COMMENTARY

Aggressive order from the lower court judge on this second litigation by Sissom; W.D. Tex. Judge Robert Pitman where former Foreclosure Mill Partner at BDF Law Group and Foreclosure Manual Author  G.Tommy Bastian is included.

ORDER DISMISSING Bastian as an improper party and Sissom’s lawsuit in its entirety.

ORDER that Sissom is WARNED that continuing to file duplicative lawsuits in this Court will result in the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions on her ability to file pleadings in the Western District of Texas. Signed by Judge Robert Pitman.

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

(5th Cir. Jan. 12, 2021)

 REPUBLISHED BY LIT: SEP 9, 2021

Summary Calendar Appeal from the United States District Court for the Western District of Texas
USDC No. 1:19-CV-949

Before WIENER, SOUTHWICK, and DUNCAN, Circuit Judges.

PER CURIAM: 

This appeal concerns Susan Sissom’s renewed attempt to prevent foreclosure of her Texas home.

She appeals the district court’s denial of her motion to remand to state court and its dismissal of her case.

We affirm.

WIENER, JACQUES L. (JR.)

SOUTHWICK, LESLIE H.

DUNCAN, STUART K.

*Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.

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).

1 The other named defendants, Malcolm Cisneros and MTC Financial, Inc., d/b/a Trustee Corporations, are successor, substitute trustees named by the mortgage servicer acting on behalf of BNYM. They successfully moved, independent of the Bank Defendants, to dismiss Sissom’s suit, invoking a provision of the Texas Property Code, and have defended dismissal on that basis in briefing before this Court. We need not address their arguments, however, because Sissom has not challenged the propriety of their dismissal.

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.

2 See, e.g., Guerra v. Wells Fargo Bank, No. SA-15-CV-763, 2015 WL 9451083, at *3 (W.D. Tex. Dec. 21, 2015); Klein v. Wells Fargo Bank, N.A., No. A-14-CA-154, 2014 WL 1342869, at *2 & n.4 (W.D. Tex. Apr. 3, 2014); Eisenberg v. Deutsche Bank Tr. Co. Americas, No. SA-11-CV-384, 2011 WL 2636135, at *2 (W.D. Tex. July 5, 2011).

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.

3 As a matter of federal common law, the preclusive effect of a prior decision issued by a federal court sitting in diversity is governed by res judicata principles borrowed from the substantive law of the State in which the reviewing federal court sits.

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001); see also Am. Home Assururance Co. v. Chevron, USA, Inc., 400 F.3d 265, 272 n.20 (5th Cir. 2005). ——–

TOMMY BASTIAN'S FORECLOSURE MANUAL

Accordingly, the district court’s judgment is AFFIRMED.

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U.S. District Court [LIVE]
Western District of Texas (Austin)
CIVIL DOCKET FOR CASE #: 1:19-cv-00949-RP

Sissom v. Countrywide Home Loans, Inc. et al
Assigned to: Judge Robert Pitman

Case in other court:  21st Judicial District Court, Bastrop, TX, 1260335
USCA 5th Circuit, 20-50392

Cause: 28:1441 Petition for Removal- Petition to Quiet Ti

Date Filed: 09/27/2019
Date Terminated: 04/20/2020
Jury Demand: None
Nature of Suit: 290 Real Property: Other
Jurisdiction: Diversity
Plaintiff
Susan Sissom represented by Susan Sissom
106 Eight Oaks Drive
Bastrop, TX 78602
PRO SE
V.
Defendant
Countrywide Home Loans, Inc.
doing business as
Anerica’s Wholesale Lender, Inc.
represented by Rebekkah B. Bodoff
McGuirreWoods
2000 McKinney Avenue, Suite 1400
Dallas, TX 75201
214-932-6400
Fax: 214-932-6499
Email: rbodoff@mcguirewoods.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDTatiana Alexander
McGuireWoods LLP
2000 McKinney Avenue
Suite 1400
Dallas, TX 75201
214-932-6439
Fax: 469-372-3884
Email: talexander@mcguirewoods.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDLishel May Bautista
McGuire Woods
2000 McKinney Ave., Suite 1400
Dallas, TX 75201
214-932-6408
Email: lbautista@mcguirewoods.com
ATTORNEY TO BE NOTICED
Defendant
The Bank of New York Mellon
formerly known as
The Bank of New York
represented by Rebekkah B. Bodoff
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDTatiana Alexander
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDLishel May Bautista
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Malcolm Cisneros, a law corporation represented by J. Garth Fennegan
SettlePou
3333 Lee Parkway, 8th Floor
Dallas, TX 75219
214-520-3300
Fax: 214-526-4145
Email: gfennegan@settlepou.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDMichael R. Steinmark
Steckler Wayne Cochran Cherry, PLLC
12720 Hillcrest Road, Suite 1045
Dallas, TX 75230
(214) 520-3300
Email: michael@swclaw.com
TERMINATED: 04/08/2020
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
MTC Financial, Inc. dba Trustee Corps represented by J. Garth Fennegan
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDMichael R. Steinmark
(See above for address)
TERMINATED: 04/08/2020
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
01/15/2020 15 OBJECTION to 13 Report and Recommendation of the United States Magistrate Judge, filed by Susan Sissom. (lt) (Entered: 01/15/2020)
01/29/2020 16 RESPONSE to 15 Objection to Report and Recommendations by Countrywide Home Loans, Inc., The Bank of New York Mellon. (Alexander, Tatiana) (Entered: 01/29/2020)
03/13/2020 17 MOTION to Withdraw as Attorney by MTC Financial, Inc. dba Trustee Corps, Malcolm Cisneros, a law corporation. (Attachments: # 1 Proposed Order)(Steinmark, Michael) (Entered: 03/13/2020)
03/25/2020 18 Emergency Order in Light of the COVID-19 Pandemic (tada) (Entered: 03/25/2020)
04/08/2020 19 ORDER GRANTING 17 Motion for Michael R. Steinmark to Withdraw as counsel. Signed by Judge Robert Pitman. (lt) (Entered: 04/08/2020)
04/17/2020 20 Amended Emergency Order in Light of the COVID-19 Pandemic (Entered: 04/17/2020)
04/17/2020 21 ORDER ADOPTING 13 Report and Recommendation of the United States Magistrate Judge. ORDER GRANTING 4 MOTION to Dismiss filed by The Bank of New York Mellon, Countrywide Home Loans, Inc. ORDER GRANTING 10 MOTION to Dismiss Without Prejudice Pursuant to Texas Property Code § 51.007 filed by MTC Financial, Inc. dba Trustee Corps, Malcolm Cisneros, a law corporation. ORDER DENYING 7 MOTION to Remand to State Court filed by Susan Sissom. ORDER DISMISSING Bastian as an improper party and Sissom’s lawsuit in its entirety. ORDER that Sissom is WARNED that continuing to file duplicative lawsuits in this Court will result in the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions on her ability to file pleadings in the Western District of Texas. Signed by Judge Robert Pitman. (lt) (Entered: 04/20/2020)
04/20/2020 22 FINAL JUDGMENT. Signed by Judge Robert Pitman. (lt) (Entered: 04/20/2020)
05/08/2020 23 NOTICE OF APPEAL by Susan Sissom. FEE NOT PAID. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out a (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk’s Office or by clicking the hyperlink above. (lt) (Entered: 05/08/2020)
07/20/2020 24 Certified copy of USCA JUDGMENT issued as the MANDATE dismissing appeal for want of prosecution. (lt) (Entered: 07/20/2020)
08/10/2020 25 USCA Clerk’s Memorandum as to 23 Notice of Appeal that the Court has granted the motion to reopen the appeal. (lt) (Entered: 08/10/2020)
02/03/2021 26 Certified copy of USCA JUDGMENT issued as the MANDATE affirming the judgment of the District Court. (lt) (Entered: 02/03/2021)
Homeowner is Threatened by Judge Robert Pitman for Defending Foreclosure Removed to W.D. Tex. Federal Court
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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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