                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1560
                                   ___________

Christopher Hintz and Sandra Hintz,       *
                                          *
             Appellants,                  *
                                          *
      v.                                  * Appeal from the United States
                                          * District Court for the
JPMorgan Chase Bank, N.A.,                * District of Minnesota.
individually and as successor in interest *
to Washington Mutual Bank; and            *
Washington Mutual Bank, F.A.,             *
                                          *
             Appellees.                   *
                                   ___________

                             Submitted: February 14, 2012
                                Filed: July 11, 2012
                                 ___________

Before RILEY, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
                              ___________

WOLLMAN, Circuit Judge.

      Christopher and Sandra Hintz (Appellants) appeal from the district court’s1
dismissal of their fourteen-count complaint against JPMorgan Chase Bank (Chase).
We conclude that, other than their claim under the Real Estate Settlement Practices
Act (RESPA), the claims set forth in Appellants’ complaint are barred by the doctrine


      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
of res judicata. As for the RESPA claims, Appellants have failed to show how the
complaint could be amended to survive a motion to dismiss. We thus affirm the
district court’s dismissal of the complaint.

                                          I.

       On July 23, 2007, Appellants refinanced their home on Lake Minnetonka,
Minnesota, executing a note and mortgage in favor of Washington Mutual for $6.75
million. On September 25, 2008, the United States government seized the assets of
Washington Mutual and placed it into Federal Deposit Insurance Corporation (FDIC)
receivership. The FDIC sold Washington Mutual’s assets to Chase that same day.
Chase thus became the holder of Appellants’ note and mortgage. According to the
Purchase and Assumption Agreement (P&A Agreement) Chase entered into with the
FDIC, Chase did not assume any liabilities of Washington Mutual that are “claims for
payment of or liability to any borrower for monetary relief, or that provide for any
other form of relief to any borrower . . . related in any way to any loan or commitment
to lend made by Washington Mutual.” D. Ct. Order of Feb. 8, 2011, at 5.

       After Appellants defaulted, Chase initiated foreclosure proceedings on the
property in October 2008. Chase bought the property at a sheriff’s sale on January
16, 2009. On July 8, 2009, Appellants sent Chase notice to rescind the mortgage. On
the same day, Christopher Hintz (hereinafter Mr. Hintz) filed a pro se suit against “JP
Morgan Chase Bank, National Association, doing business as Washington Mutual”
in Hennepin County District Court. The suit sought damages under theories of
promissory estoppel and negligence for (1) alleged wrongdoing by Washington
Mutual in connection with its handling of Appellants’ loan, and (2) Chase’s actions
in foreclosing upon the property. The complaint also alleged a Truth In Lending Act
(TILA) violation but did not assert it as a cause of action. Chase moved to dismiss,
arguing that the claims based on Washington Mutual’s alleged wrongdoing must be
pursued in an administrative hearing with the FDIC and that Mr. Hintz’s complaint

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otherwise failed to state a claim upon which relief could be granted. On January 4,
2010, the Honorable Janet N. Poston, Hennepin County District Judge, issued a
summary order dismissing Mr. Hintz’s claims “with prejudice.” Mr. Hintz did not
appeal the state court judgment.

       Appellants obtained counsel and filed a second suit in Hennepin County
District Court on June 10, 2010, against Washington Mutual and Chase, individually
and as successor in interest to Washington Mutual. The new complaint alleged
causes of action relating to Washington Mutual’s purported misrepresentations and
alleged failure to disclose information and Chase’s alleged failure to provide adequate
notice of the sheriff’s sale, in violation of TILA, and to respond to two Qualified
Written Requests (QWRs), in violation of RESPA. Chase removed the suit to federal
court and thereafter filed a motion to dismiss.

       In granting Chase’s motion to dismiss, the district court held: (1) the court
lacked jurisdiction over claims against Washington Mutual;2 (2) liability claims
against Chase based on Washington Mutual’s actions were barred by the P&A
Agreement; (3) non-RESPA claims against Chase were barred by res judicata; and,
(4) the RESPA claim failed to state a claim upon which relief could be granted.
Accordingly, the district court dismissed all claims against Washington Mutual
without prejudice and all claims against Chase with prejudice.

       Appellants now appeal the district court’s determinations that res judicata bars
all non-RESPA claims and that Appellants’ claim for rescission under TILA expired
when the property was sold. They further argue that the district court erred in
denying leave to amend the complaint to re-plead the RESPA claim.


      2
       Because Washington Mutual is in FDIC receivership, the proper venue for
claims against it is an administrative hearing before the FDIC. See 12 U.S.C.
§ 1821(d)(13)(D).

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                                            II.

                                            A.

        As an initial matter, Chase argues that Appellants forfeited their argument that
the state court’s dismissal was not a final judgment on the merits by failing to present
it to the federal district court. Appellants respond that their submissions to the district
court effectively, if not explicitly, argued that the prior judgment was not a final
judgment on the merits. There is a difference between a new argument and a new
issue. See Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1314 (8th Cir.
1991). Because Chase raised the affirmative defense of res judicata, that defense and
its elements were before the district court. The district court analyzed each element
in concluding that Chase had met its burden of proof in establishing the defense.
Although the arguments before the district court did not focus on whether the state
court’s order constituted a ruling on the merits, Appellants’ contention that the order
was not on the merits raises only a new argument, not a new issue, and thus is not
barred from review. See id.

                                            B.

       Contending that it was not presented to the district court, Chase has moved to
strike that portion of Appellants’ appendix that contains the transcript of the hearing
before the state court. The state court order dismissing the suit indicates no particular
grounds for dismissing the original state court suit; it merely dismissed the complaint
“with prejudice.” The transcript therefore helps to identify the possible grounds on
which the state district court dismissed the original suit. Moreover, because Mr.
Hintz did not file a written response, the transcript provides the only basis for our
review of his reply to Chase’s motion to dismiss. The parties do not dispute the
validity of the transcript, and both parties referred to the transcript in their federal
appellate briefing. We have previously stated “that a party who wishes to avail

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himself of a prior judgment as res judicata must introduce the whole record of the
prior proceeding.” Bryson v. Guarantee Reserve Life Ins. Co., 520 F.2d 563, 566 (8th
Cir. 1975); see also Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63
(8th Cir. 1993) (“When the interests of justice demand it, an appellate court may order
the record of a case enlarged.”). Given the circumstances of this case, we will
consider the transcript on appeal, and thus we deny the motion to strike.

                                          C.

       We review de novo the district court’s grant of a motion to dismiss based on
res judicata, and we accept the plaintiff’s factual allegations as true. Laase v. County
of Isanti, 638 F.3d 853, 856 (8th Cir. 2011) (citations omitted). “By enacting the Full
Faith and Credit Statute, 28 U.S.C. § 1738, ‘Congress has specifically required all
federal courts to give preclusive effect to state court judgments whenever the courts
of the State from which the judgments emerged would do so.’” Id. (quoting Allen v.
McCurry, 449 U.S. 90, 96 (1980)). Thus, we must determine whether the state court
judgment of dismissal is preclusive under Minnesota law.

       Under Minnesota law, res judicata is an affirmative defense and applies as an
absolute bar to a subsequent claim when: (1) the earlier claim involved the same set
of factual circumstances; (2) the earlier claim involved the same parties or their
privies; (3) there was a final judgment on the merits; and (4) the estopped party had
a full and fair opportunity to litigate the matter. Hauschildt v. Beckingham, 686
N.W.2d 829, 840 (Minn. 2004). In order for res judicata to apply, Chase must
demonstrate that all elements of the defense are met. See Howard v. Green, 555 F.2d
178, 181 (8th Cir. 1977) (citations omitted) (stating that the burden of proof for res
judicata is on the party asserting it); see also Barth v. Stenwick, 761 N.W.2d 502, 508
(Minn. App. 2009) (stating that the burden of proof is on party claiming it for
purposes of collateral estoppel). The only question here is whether the state court’s
final judgment was on the merits.

                                          -5-
       Chase contends that the state court’s dismissal of Mr. Hintz’s complaint “with
prejudice” demonstrates that the dismissal was “on the merits.” According to Chase,
Johnson v. Hunter, holds that a dismissal “with prejudice” is a dismissal on the
merits. 447 N.W.2d 871, 873 (Minn. 1989). This likely overstates the holding in
Johnson. See Charchenko v. City of Stillwater, 47 F.3d 981, 985 (8th Cir. 1995).
“Johnson simply held that a dismissal with prejudice for lack of prosecution was a
dismissal on the merits.” Id. (citing Johnson, 447 N.W.2d at 873). As the Minnesota
Court of Appeals has recognized, “a district court’s designation of ‘with prejudice’
or ‘without prejudice’ must be viewed in light of the basis for the dismissal and is not
automatically dispositive of whether a second suit is barred.” Unbank Co., LLP v.
Merwin Drug Co., Inc., 677 N.W.2d 105, 109 (Minn. App. 2004) (citations omitted).
Thus, we must look to the basis of the state court’s dismissal of the complaint.

       Appellants contend that res judicata should not be applied where uncertainty
exists as to whether the first lawsuit was a final judgment on the merits. They argue
that because multiple grounds existed for the dismissal, it is uncertain whether the
dismissal was on the merits. The record before us shows that the state court could
have dismissed the case for Mr. Hintz’s procedural default by failing to submit a
written response to Chase’s motion to dismiss, for failure to state a claim, for lack of
jurisdiction, or any combination thereof. If the dismissal was based on procedural
default or for failing to state a claim, the adjudication was on the merits under
Minnesota law. See Minn. R. Civ. P. 41.02(a), (c).

       If, however, the entire complaint was dismissed for lack of subject matter
jurisdiction, the adjudication was not on the merits. The Minnesota Rules of Civil
Procedure provide:

      Unless the court specifies otherwise in its order, a dismissal pursuant to
      this rule and any dismissal not provided for in this rule or in Rule 41.01,
      other than a dismissal for lack of jurisdiction, for forum non conveniens,


                                          -6-
      or for failure to join a party indispensable pursuant to Rule 19, operates
      as an adjudication on the merits.

Minn. R. Civ. P. 41.02(c). As indicated above, a procedural default in Minnesota
operates as a dismissal on the merits. See Minn. R. Civ. P. 41.02(a), (c). Questions
of forum non conveniens and joinder are not at issue in this case.

       Appellants contend that the complaint, including claims against Chase, was
dismissed for lack of subject matter jurisdiction. The record of proceedings in the
state court, however, belies this contention. Chase’s only argument regarding lack
of subject matter jurisdiction was based on the fact that Washington Mutual is in
receivership. Appellant’s App. 0100-01, 0105. The state court had jurisdiction over
claims against Chase, and Chase’s counsel made clear to Judge Poston that Chase was
not doing business as Washington Mutual. Appellant’s App. 0085, 0098. Although
the claims against Washington Mutual may have been dismissed for lack of subject
matter jurisdiction, the record reveals that claims against Chase were dismissed either
because Mr. Hintz defaulted or his complaint failed to state a claim. Thus, although
more than one ground existed for the dismissal, each would have resulted in a
dismissal on the merits of the claims against Chase. Accordingly, we conclude that
res judicata bars Appellants’ non-RESPA claims.3

                                         III.

      Appellants argue that Chase violated RESPA when it failed to respond to two
written requests for information. The district court determined that the written
requests failed to meet the statutory definition of QWRs, see 12 U.S.C.
§ 2605(e)(1)(B), and that Appellants failed to allege how they suffered any pecuniary

      3
       Because we conclude that res judicata applies to Appellants’ claims, we do
not reach Chase’s argument that Appellants are attempting to collaterally attack Judge
Poston’s judgment.

                                         -7-
damage for violations of RESPA. Appellants argue that their RESPA claim should
have been dismissed without prejudice because the complaint could have been
amended to cure any defects. Appellants failed to attach to the complaint the two
letters they purport to be QWRs, and they argue that attaching the letters will cure the
defects in their complaint. Even if attaching the letters could cure Appellants’
problem in meeting the statutory definition of QWRs, however, the letters will not
cure Appellants’ problem in pleading actual damages.

      RESPA limits an individual’s damages for violations of QWR requirements to
“actual damages” and, “in the case of a pattern or practice of noncompliance,” to
$1,000 in statutory damages. 12 U.S.C. § 2605(f)(1). The district court dismissed
Appellants’ RESPA claim with prejudice because “even if [Appellants] were to
attempt to amend their Complaint . . . the amendment would be futile because
[Appellants] fail to allege how the alleged RESPA violations caused them pecuniary
damage.” D. Ct. Order of February 8, 2011, at 23. The district court explained that
damages for a RESPA claim must be pled with particularity, “limiting the cause of
action to circumstances in which plaintiff can show that a failure to respond or give
notice has caused them actual harm.” Id. (quoting Shepherd v. Am. Home Mortg.
Servs., Inc., No. Civ. 2:09-1916, 2009 WL 4505925, at *3 (E.D. Cal. Nov. 20, 2009)).

        “[W]hen the court denies leave on the basis of futility, it means the district
court has reached the legal conclusion that the amended complaint could not
withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, and appellate review of this legal conclusion is . . . de novo.” Cornelia I.
Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 781-82 (8th Cir. 2008) (citing
In re Senior Cottages of Amer., 482 F.3d 997, 1001 (8th Cir. 2007)). “Generally,
‘parties should not be allowed to amend their complaint without showing how the
complaint could be amended to save the meritless claim.’” Id. at 783-84 (citation
omitted). Appellants claim they can cure the defect in their complaint by attaching
the letters they claim to be QWRs because the letters will show that the requests relate

                                          -8-
to the servicing of the loan. Even if the letters relate to the servicing of the loan,
however, Appellants do not overcome their problem with pleading actual damages.
Appellants’ complaint states that Chase’s failure to respond to their written requests
caused them to suffer damages “in an approximate amount in excess of Fifty
Thousand Dollars ($50,000.00).” Compl. 22, ¶ 168. Appellants failed to allege how
this figure resembles their actual damages arising from Chase’s failure to respond to
the request. On appeal, Appellants likewise do not indicate any actual damages they
suffered from Chase’s failure to respond to their written requests. “As [Appellants]
did not establish how [their] complaint could be amended, the district court did not
err in denying leave to amend on the basis of futility.” Cornelia I. Crowell GST
Trust, 519 F.3d at 784.

                                         IV.

      The judgment is affirmed. Chase’s motion to strike is denied.
                     ______________________________




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