United States District Court, E.D. Louisiana
ORDER AND REASONS
C. ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a Rule 12(b)(6) Motion to Dismiss (Rec.
Doc. 5) filed by Defendant Select Portfolio
Servicing, Inc. Plaintiff Michael Shelley has not filed an
opposition to the motion. The motion, set for submission on
January 17, 2018 is before the court on the briefs without
oral argument. Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds
that the motion should be GRANTED for the
reasons set forth below.
October 29, 2004, Plaintiff executed a promissory note in
favor of Olympus Mortgage Company or “anyone who takes
this Note by transfer” in the principal amount of $61,
000.00 (the “Note”). The Note is secured by a
mortgage that was signed by Plaintiff on October 29, 2004,
and recorded in the Jefferson Parish, Louisiana as Instrument
Number 10466394, Book 4211, Page 910 (the
“Mortgage”). The Mortgage encumbers the immovable
property located at 457 Sala Avenue, Westwego, Louisiana
70094 (the “Property”).
Note was endorsed by Olympus Mortgage Company and made
payable to Ameriquest Mortgage Company, which endorsed the
Note in blank, rendering the Note bearer paper. (Rec. Doc.
5-2). U.S. Bank, N.A. is the current holder and possessor of
the Note. Defendant Select Portfolio Servicing, Inc. has been
the loan servicer since July 1, 2012. Plaintiff allegedly
defaulted on the Note and Mortgage by failing to remit the
November 1, 2015 monthly installment, and all subsequent
installments. As a result of Plaintiff's default and his
failure to cure the defect, the loan was accelerated and the
entire unpaid balance, together with interest, and allowable
fees, are now allegedly due, owing, and unpaid. (Rec. Doc.
about August 9, 2016, U.S. Bank filed suit against Plaintiff
in the Twenty-Fourth Judicial District Court for the Parish
of Jefferson to enforce its rights in the Note and Mortgage
against Plaintiff. In response to the lawsuit filed by U.S.
Bank, Plaintiff filed a civil action on October 11, 2016
against Defendant in the Second Justice of the Peace Court
for the Parish of Jefferson. Defendant timely removed that
state court action to this Court on October 28, 2016. The
Court then dismissed Plaintiff's lawsuit with prejudice
on April 13, 2017.
then filed the instant lawsuit on or about November 21, 2017,
which is virtually identical to Plaintiff's previous
October 11, 2016 civil action. Plaintiff once again filed his
suit in the Second Justice of the Peace Court for the Parish
of Jefferson before Defendant again removed the action to
this Court on December 19, 2017. On or about December 6,
2017, the Property was sold at a Sheriff's foreclosure
sale. (Rec. Doc. 5-2).
now brings the instant motion seeking to dismiss
Plaintiff's claims on the following grounds: (1)
Plaintiff's claims are barred by res judicata; (2)
Plaintiff waived presentment by the clear and unambiguous
terms set out in the Note, and was not entitled to request
that the Note be exhibited to him; (3) Defendant is not a
debt collector under the FDCPA, and cannot be held liable for
a violation of the FDCPA; (4) to the extent that Plaintiff
makes a claim under the Fair Credit Reporting Act for
improper reporting, Plaintiff has no right of action, and
failed to comply with the statutory requirements for
asserting such a claim; (5) Plaintiff's injunction
request is moot because the foreclosure sale has been
completed; and (6) Plaintiff's request for injunctive
relief does not fall within one of the statutory exceptions
in the Anti-Injunction Act.
well-settled standards governing Rule 12(b)(6) motions to
dismiss, a claim may not be dismissed unless it appears
certain that the plaintiff cannot prove any set of facts that
would entitle him to legal relief. In re Supreme Beef
Processors, Inc., 468 F.3d 248, 251 (5th Cir. 2006)
(citing Benton v. United States, 960 F.2d 19 (5th
Cir. 1992)). To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. A court must accept all
well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009). But
the Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at
legally sufficient complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Id. In other words, the face of the
complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim. Lormand,
565 F.3d at 257. If there are insufficient factual
allegations to raise a right to relief above the speculation
level, or if it is apparent from the face of the complaint
that there is an insuperable bar to relief, the claim must be
dismissed. Twombly, 550 U.S. at 555.
Law and Analysis
is entitled to dismissal of Plaintiff's claims because
the claims are barred by res judicata. Res judicata functions
as claim preclusion. Wild Well Control, Inc. v.
SeabrightInsurance Company, No. 16-7113, 2017
WL 3849320, at *3 (E.D. La. 2017). Federal res judicata rules
govern the preclusive effect of ...