                               NOT RECOMMENDED FOR PUBLICATION
                                       File Name: 13a0295n.06
                                                                                                            FILED
                                                    No. 12-3732                                         Mar 25, 2013
                                                                                                DEBORAH S. HUNT, Clerk
                                 UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT


TIM L. NEFF; BOBBIE K. NEFF,           )
                                       )
      Plaintiffs-Appellants,           )
                                       )                        ON APPEAL FROM THE UNITED
v.                                     )                        STATES DISTRICT COURT FOR THE
                                       )                        SOUTHERN DISTRICT OF OHIO
FLAGSTAR BANK, FSB,                    )
                                       )
      Defendant-Appellee.              )                        OPINION
                                       )
______________________________________ )

         Before: MARTIN and GILMAN, Circuit Judges; and FOWLKES, District Judge.*

         RONALD LEE GILMAN, Circuit Judge. Tim and Bobbie Neff brought this action against

Flagstar Bank for fraudulent misrepresentation (Count I), violation of the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. § 1692l(a)(1) (Count II), and breach of contract (Count III) in

connection with the bank’s foreclosure on their residence. Due to the Neffs’ financial difficulties

in 2009, they requested Flagstar to modify the repayment terms of their home mortgage loan. The

Neffs’ Complaint alleges that Flagstar’s conduct both before and after the bank commenced

foreclosure is the basis for their three causes of action.

         Flagstar filed a motion to dismiss the Complaint in its entirety for failure to state a claim.

The district court granted Flagstar’s motion on the basis of res judicata, a ground not raised as a

defense or otherwise argued by Flagstar. For the reasons set forth below, we REVERSE the


         *
          The Honorable John T. Fowlkes, Jr., United States District Judge for the W estern District of Tennessee, sitting
by designation.
No. 12-3732
Neff et al. v. Flagstar Bank


judgment of the district court and REMAND the case for further proceedings consistent with this

opinion.

                                        I. BACKGROUND

A.       Factual background

         The following facts are summarized from the Neffs’ Complaint. These facts are not currently

in dispute because the case is before us on appeal from a motion to dismiss for failure to state a

claim.

         Some time after the Neffs refinanced their home mortgage loan with Flagstar in September

2008, they began experiencing financial difficulties. In September 2009, they requested a loan

modification from the bank. Flagstar asked the Neffs to submit paperwork to see if they would

qualify for such a modification. Tim Neff spoke on the telephone with Flagstar representatives in

October and November 2009 and complied with their requests for additional paperwork, including

paycheck stubs and bank statements. In February 2010, Flagstar offered the Neffs a “reinstatement

arrangement that required the Neffs to pay [Flagstar] $1,116.92” per month from March to June

2010.

         The Neffs made the requested payments. In the interim, however, they received a letter from

Flagstar notifying them that their loan was in default. But in a June 2010 telephone call, a Flagstar

representative told Tim Neff that the bank was preparing a loan-modification agreement for the

Neffs’ mortgage. Yet no modification proposal ever came from the bank. Instead, the Neffs

received subsequent requests for more paperwork and another letter stating that the mortgage was


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Neff et al. v. Flagstar Bank


in default. The Neffs again complied with Flagstar’s requests, and the bank again told the Neffs that

it was “working on the Neffs’ file.” In December 2010, the Neffs received another default letter, this

time sent from a law firm, which stated that the Neffs owed Flagstar $151,351.10. When Tim Neff

inquired in January 2011 about the status of the loan modification, a Flagstar representative told him

that the bank was working on it. That same month, Flagstar commenced a foreclosure action in the

Knox County Court of Common Pleas.

       A month after filing the foreclosure proceedings, Flagstar asked the Neffs to send “a financial

form and the last two paystubs,” which Tim Neff promptly provided. The bank had no contact with

the Neffs again until Tim Neff inquired in May 2011 about the status of the loan modification. Once

again, Flagstar told him to keep updating his file with more financial paperwork. Believing that

Flagstar was finalizing a loan-modification agreement, the Neffs did not respond to the foreclosure

proceedings. Flagstar later moved for a default judgment, which was entered against the Neffs in

July 2011.

       The pattern of Tim Neff’s inquiring about the status of a loan-modification agreement and

Flagstar’s answering with requests for more paperwork continued in August and September 2011,

with the bank stating “that it was working on a new agreement for the Neffs.” In a September 2011

telephone conversation, Tim Neff asked “whether the Neffs should retain counsel to help resolve the

Neffs’ situation.” Tim Neff was advised by the Flagstar representative not to obtain counsel because

the bank “could do the same thing an attorney could do, and that counsel was not necessary.”

Relying on this statement, the Neffs did not retain counsel.


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       On September 14, 2011, the Knox County Court of Common Pleas ordered a sheriff’s sale

of the Neffs’ home. Tim Neff received notice of the scheduled sale through a newspaper listing.

Only after another phone call and request for paperwork from Flagstar in October 2011 did the Neffs

realize that “they had been duped.” They finally retained counsel in mid-November 2011. The Neffs

then promptly sought relief from the default judgment and a stay of the sheriff’s sale, but were

unsuccessful. Flagstar purchased the Neffs’ home at the sheriff’s sale held on December 9, 2011.

B.     Procedural background

       Two weeks after the sheriff’s sale, the Neffs filed their Complaint in federal district court,

alleging that Flagstar’s conduct from September 2009 onward constituted fraudulent

misrepresentation, a FDCPA violation, and a breach of contract. Instead of filing an answer, Flagstar

moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Complaint for

failure to state a claim. Flagstar argued in its brief supporting the motion to dismiss that the Neffs’

fraudulent-misrepresentation claim was not pleaded with sufficient particularity, did not identify a

material misstatement of fact that caused harm, and was barred by the statute of frauds. The bank

next contended that the FDCPA claim failed because the FDCPA does not apply to an entity that

attempts to collect a debt that it originated. And finally, Flagstar argued that Count III (styled as a

“breach of contract and promissory estoppel” claim) was likewise barred by the statute of frauds and

also failed to allege detrimental reliance. Flagstar’s reply brief raised no other grounds for

dismissing the Complaint.




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        After briefing was complete on Flagstar’s motion to dismiss, the Neffs filed a motion for a

temporary restraining order (TRO). The Neffs asked the district court to enjoin any eviction or

transfer of title to a third party so as to “maintain the status quo during the pendency of [the] case.”

Flagstar made the following additional arguments in opposition to the TRO motion that it did not

make in its motion to dismiss: (1) that the Anti-Injunction Act prohibits the district court from

staying proceedings in an Ohio state court, (2) that the Rooker-Feldman doctrine precludes the

district court from reviewing a final judgment of an Ohio state court, and (3) that collateral estoppel

prevents the district court from making findings contrary to those of an Ohio state court.

        The district court granted Flagstar’s motion to dismiss, but not based on any of the arguments

raised in the bank’s briefs. Instead, the court concluded that it was “precluded from hearing this case

by the doctrine of res judicata” because Ohio’s four-part test for res judicata was met. Flagstar’s

foreclosure action in state court thus barred the Neffs’ claims in the present case. The court

consequently denied the Neffs’ motion for a TRO as moot. This timely appeal followed.

                                           II. ANALYSIS

A.      Standard of review

        “We review de novo a district court’s order granting a motion to dismiss pursuant to Rule

12(b)(6).” Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d 516, 519 (6th Cir. 2011). That same

standard applies to our review of “a district court’s application of res judicata.” Id. (internal

quotation marks omitted).

B.      The district court erred by raising the res judicata defense sua sponte


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        On appeal, both parties have addressed whether the Neffs’ current claims and the prior

litigation in state court meet Ohio’s four-part test for res judicata. But neither party has addressed

the preliminary issue regarding the propriety of the district court’s raising sua sponte an affirmative

defense that Flagstar failed to plead or otherwise argue in its motion and supporting briefs.

        The Neffs’ “[f]ailure to raise an issue on appeal would normally constitute a waiver of that

issue,” see Rybarczyk v. TRW, Inc., 235 F.3d 975, 984 (6th Cir. 2000), but this court has used its

“discretion to reach an issue that the parties have not briefed where it involves a pure question of law

that cries out for resolution,” Hutcherson v. Lauderdale Cnty., 326 F.3d 747, 756 (6th Cir. 2003)

(internal quotation marks omitted). In the present case, the district court’s sua sponte reliance on res

judicata is such a “pure question of law” that warrants our consideration.

        The district court held that res judicata precluded it from hearing this case. By using the

phrase “precluded from hearing,” the court incorrectly suggests that res judicata stripped it of

subject-matter jurisdiction. See O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 582 (6th Cir.

2009) (“Fed. R. Civ. P. 8(c) clearly frames res judicata as an affirmative defense, which means that

it can be waived and that it does not go to subject-matter jurisdiction.”). Unlike res judicata, the

conceptually related Rooker-Feldman doctrine is jurisdictional and therefore may properly be raised

by the court sua sponte. Saker v. Nat’l City Corp., 90 F. App’x 816, 818 n.1 (6th Cir. 2004)

(“Because Rooker-Feldman concerns federal subject matter jurisdiction, this court may raise the

issue sua sponte at any time.”); see also Gilbert v. Ferry, 401 F.3d 411, 416 (6th Cir. 2005)

(describing the Rooker-Feldman doctrine in jurisdictional terms). But because the district court


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expressly applied Ohio’s law of res judicata, not the Rooker-Feldman doctrine, its sua sponte

addressing of the issue cannot be justified as a jurisdictional inquiry.

       Rule 8(c) of the Federal Rules of Civil Procedure lists res judicata as an affirmative defense

available to the defending party, and “[c]ourts generally lack the ability to raise an affirmative

defense sua sponte.” Hutcherson, 326 F.3d at 757. “Nevertheless, the Supreme Court has indicated

that a court may take the initiative to assert the res judicata defense sua sponte in ‘special

circumstances.’” Id. (quoting Arizona v. California, 530 U.S. 392, 412 (2000)). The “special

circumstance” recognized in Arizona, which was first articulated by Justice Rehnquist in his dissent

in United States v. Sioux Nation of Indians, 448 U.S. 371, 432 (1980), is when “a court is on notice

that it has previously decided the issue presented.” Arizona, 530 U.S. at 412 (internal quotation

marks omitted).

       Such was the basis for affirming the district court’s sua sponte assertion of res judicata in

Holloway Construction Co. v. United States Department of Labor, 891 F.2d 1211, 1212 (6th Cir.

1989) (per curiam). The Sixth Circuit has also held that the unavailability of the res judicata defense

when a defendant filed its motion for judgment on the pleadings was likewise a “special

circumstance” that justified a court’s sua sponte raising of the defense when it later became

available. See Hutcherson, 326 F.3d at 757. In Hutcherson, moreover, the plaintiffs were already

“on notice of a potential res judicata defense” because the defendants had “raise[d] the issue of

duplicative proceedings.” Id.




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        Unlike in Arizona or Holloway, the district court in the present case gave preclusive effect

to a judgment of another court (the Knox County Court of Common Pleas), not to one of its own

prior decisions. And the res judicata defense here, unlike the circumstances in Hutcherson, was

available at the time Flagstar filed its motion to dismiss because the state court had already entered

the judgment that would arguably preclude the Neffs’ claims. Even if we were to accept the

contention made by Flagstar’s counsel at oral argument that the res judicata defense was not

available until the sheriff’s sale in December 2011 was confirmed by the state court on April 2, 2012

(six weeks after Flagstar filed its motion to dismiss in federal court), the bank still failed to raise the

defense in its April 23, 2012 opposition to the Neffs’ motion for a TRO. In sum, no facts in the

record exempt this case from the general rule that courts should not address sua sponte affirmative

defenses that defending parties fail to raise.

        Flagstar raised a different affirmative defense—the statute of frauds—in its motion to

dismiss. The bank also argued that Rooker-Feldman and collateral estoppel, two doctrines closely

related to res judicata, precluded the injunctive relief that the Neffs sought. Notably, however,

Flagstar directed its Rooker-Feldman and collateral-estoppel arguments only to the impropriety of

injunctive relief and not to the Neffs’ likelihood of success on the merits. These facts suggest that

Flagstar knew the range of affirmative defenses potentially available, argued the one that it

determined was applicable to defeat the merits of the Neffs’ Complaint (the statute of frauds), and

determined that doctrines related to res judicata (but not res judicata itself) defeated the Neffs’ TRO

motion.


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        Flagstar thus failed to raise res judicata as an affirmative defense and the district court

identified no “special circumstances” to justify addressing the issue sua sponte. Nor do any such

circumstances appear from the record. We therefore conclude that the district court erred in granting

Flagstar’s motion to dismiss based on a waived affirmative defense that was never argued.

C.      Litigation efficiencies do not warrant addressing the res judicata issue or the merits of
        Flagstar’s Rule 12(b)(6) motion

        Certain aspects of the present case make it tempting to reach the substance of the res judicata

issue despite Flagstar’s failure to raise the defense below and the district court’s error in addressing

the issue sua sponte. These aspects are that the parties have fully briefed the issue on appeal, the

Neffs did not argue that the res judicata defense was waived, and there is a relevant opinion below

for us to review. But several stronger reasons counsel against our reaching the merits of the res

judicata issue.

        First, res judicata is a doctrine based in part on the policy of promoting efficiency in litigation

and conserving judicial resources. Allen v. McCurry, 449 U.S. 90, 94 (1980). At first blush, this

rationale would seem to support ignoring the procedural defect below to reach the res judicata issue.

But addressing the issue on appeal would, in effect if not in words, condone the course taken by the

district court. The court raised the res judicata issue only after the parties had fully briefed Flagstar’s

potentially dispositive motion and the Neffs’ motion for a TRO. Costs associated with preparing and

responding to those motions were at that point already incurred, thus reducing the potential litigation

efficiencies that a res judicata disposition would achieve. In other words, a doctrine meant to prevent



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relitigation of claims from a prior action is less efficacious when applied only after significant

litigation in the subsequent action has already occurred.

        Addressing the res judicata issue on appeal would also undermine the force of Rule 8(c)’s

requirement that res judicata must be pleaded as an affirmative defense in order to be considered and

would be in disregard of the Supreme Court’s recognition that exceptions to the application of that

Rule’s mandate should be made only in “special circumstances.” See Arizona, 530 U.S. at 412.

Limiting any exceptions to Rule 8(c)’s requirement promotes litigation efficiency in its own right

by encouraging defending parties to timely raise the res judicata defense. A properly raised defense,

in turn, gives the court the benefit of full briefing before rendering a decision, thereby reducing the

risk of error. The risk of error is especially pronounced in a case like this where the issue that was

not briefed in the district court—the application of Ohio’s law of res judicata—pertains to an area

of law in which the federal courts generally have less expertise and certainly have less authority.

        Moreover, the particular res judicata issue in the present case is complicated and lacks

controlling Ohio precedent. Compare Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-CV-904, 2010

WL 148159, at *2, *5 (S.D. Ohio Jan. 11, 2010) (holding, without citation to Ohio law, that Ohio

res judicata law does not preclude claims based on the defendant’s alleged conduct during the course

of state-court litigation, despite the plaintiff’s having filed a Rule 60(b) motion in that litigation),

with Sessley v. Wells Fargo Bank, N.A., No. 2:11-cv-348, 2012 WL 726749, at *9 (S.D. Ohio Mar.

6, 2012) (holding, without citation to Ohio law, that a judgment obtained by fraud has preclusive




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effect because the claim of fraud “should have been made in a Rule 60 motion”). Indeed, were we

to decide the res judicata issue, it would make new Ohio law no matter the conclusion reached.

        Further clarity in this area of law is certainly desirable, “[b]ut where interpretation of the

state-law issue is not necessary in order to properly resolve the appeal, we find it advisable not to

do so.” Partee v. City of Memphis, 449 F. App’x 444, 449 (6th Cir. 2011); see also Brown v.

Raymond Corp., 432 F.3d 640, 650 (6th Cir. 2005) (Ryan, J., concurring) (noting that federal courts

sitting in diversity should avoid declaring a new rule of state law if the case can otherwise be

properly decided). In sum, we conclude that the better course is to remand the case to the district

court for consideration of the merits of Flagstar’s motion to dismiss based on the issues actually

raised by Flagstar.

        Flagstar nevertheless requests that we decide the merits of its motion in the first instance,

arguing that “[i]f the District Court reached the right result for the wrong reason, judicial economy

is not served by remanding a case for the sole purpose of reinstating the dismissal.” Whether the

district court reached the right result, however, is far from clear. Although the district court’s error

in raising the res judicata issue sua sponte has delayed the proper consideration of the motion, that

delay does not warrant abandoning the normal course of litigation. The district court should have

the first opportunity to address the various issues raised in Flagstar’s motion to dismiss.

                                        III. CONCLUSION

        For all of the reasons set forth above, we REVERSE the judgment of the district court and

REMAND the case for further proceedings consistent with this opinion.


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