     Case: 17-10648      Document: 00514447961         Page: 1    Date Filed: 04/26/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-10648                                FILED
                                  Summary Calendar                          April 26, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
JAMES D. KONCAK; JUDI K. KONCAK,

                                                 Plaintiffs-Appellants

v.

DEUTSCHE BANK NATIONAL TRUST, as Trustee for GSAMP Trust 2006-
FM2, Mortgage Pass-Through Certificates, Series 2006-FM2; OCWEN LOAN
SERVICING, L.L.C.,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1507


Before ELROD, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       James and Judi Koncak move for leave to proceed in forma pauperis
(IFP), challenging the district court’s certification that their appeal is not taken
in good faith for purposes of 28 U.S.C. § 1915(a). See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). According to the Koncaks, they have a nonfrivolous
claim that the defendants’ effort to foreclose on their home is barred by the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-10648     Document: 00514447961     Page: 2   Date Filed: 04/26/2018


                                 No. 17-10648

statute of limitations. They assert that the district court’s dismissal of their
complaint as barred by res judicata without resolving the statute of limitations
issue leaves the door open to future litigation. They contend that res judicata
does not apply because their prior action against the same defendants involved
a completely different fraud-based challenge to the foreclosure.
      The Koncaks do not dispute that the previous action was dismissed on
the merits by a court of competent jurisdiction, that the two cases involve the
same parties, or that the statute of limitations claim could have been raised in
the previous action.   Their argument that the two cases are unrelated is
unpersuasive. Both arose from the Koncaks’ failure to meet the same loan
obligation and their desire to prevent foreclosure on the same property. In
both cases, the Koncaks challenged the defendants’ authority to enforce the
lien through foreclosure. The claims thus arise from the same subject matter,
and the district court correctly determined that the instant action is barred by
res judicata. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996);
see also Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09 (2001)
(holding that the forum state’s law on res judicata applies in a diversity action
unless incompatible with federal interests); Norris v. Hearst Trust, 500 F.3d
454, 461 (5th Cir. 2007) (recognizing that Amstadt provides the Texas rule on
res judicata). To the extent that the Koncaks also argue that Rule 736.9 of the
Texas Rules of Civil Procedure precludes the application of res judicata, their
reliance on the rule is misplaced because the district court did not give
preclusive effect to an expedited order of foreclosure.
      For these reasons, we agree with the district court that the appeal lacks
arguable merit and is not taken in good faith. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). The motion for leave to proceed IFP is DENIED, and
the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 201-02 & n.24;
5TH CIR. R. 42.2.

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