                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         APR 26 2000
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 RICKY PADDOCK and DEBRA
 PADDOCK, husband and wife,

               Plaintiffs - Appellants,
                                                        No. 99-6099
          v.                                     (D. Ct. No. 98-CV-166-L)
                                                        (W.D. Okla.)
 FIRST UNION NATIONAL BANK
 OF FLORIDA,

               Defendant - Appellee.


                            ORDER AND JUDGMENT          *




Before SEYMOUR , Chief Judge, HOLLOWAY , and TACHA , Circuit Judges.


      Plaintiffs appeal from the district court’s grant of summary judgment. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                          I.

      In 1987, while living in Florida, the plaintiffs Paddock purchased a boat.

The Paddocks financed the purchase through Florida National Bank, a predecessor

to defendant First Union National Bank. The installment contract required the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Paddocks to maintain physical damage insurance on the boat throughout the term

of the financing. The contract further provided that if the Paddocks did not

maintain insurance, the bank could obtain it for them.

      In 1993, First Union filed suit in Florida state court, alleging that plaintiffs

had failed to make a required installment payment. The state court entered

judgment in favor of First Union in the amount of $4364.68. The court gave the

Paddocks credit for all installment payments made to date. However, the court

further found that the Paddocks owed First Union for insurance purchased by the

bank and expenses incurred in the attempted repossession of the collateral.

      In 1995, a federal district court in Florida certified a class action against

First Union. The class complaint alleged that First Union used the mails to

demand and collect unauthorized insurance premiums in violation of the federal

mail fraud statute, 18 U.S.C. § 1341, and the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1962. The class action also charged that

First Union violated the Truth in Lending Act, 15 U.S.C. § 1640, and breached

individual consumer credit contracts. The Paddocks qualified as members of the

class and did not request exclusion from the suit.

      In 1996, the federal district court entered a Settlement Order and Judgment

in the class action. The judgment provided compensation to the plaintiff class

and ordered that “all members of the Plaintiff Class who did not properly request


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exclusion are barred and permanently enjoined from asserting, instituting or

prosecuting, either directly or indirectly, any claim settled under the terms of the

Agreement.” Order at 2. The Settlement Agreement provided that

       the Representative Plaintiffs and those members of the Plaintiff Class who
       have not timely excluded themselves shall be deemed to have convenanted
       and agreed that: (i) First Union . . . and . . . their respective . . .
       predecessors . . . shall be forever released and discharged from any claim,
       demand, action, cause of action or liability of any nature, whether known or
       unknown, suspected or unsuspected, which the non-excluded Plaintiff Class
       members ever had based upon any violation of any statute or state or
       federal law, other statutory or common law, or any other allegation, relating
       to CPI [Collateral Protection Insurance].

Settlement Agreement at 20.

       On May 7, 1997, First Union attempted to register the Florida state

judgment against the Paddocks as an Oklahoma judgment since the Paddocks

were now Oklahoma residents. When the Paddocks resisted the registration, First

Union voluntarily vacated the proceeding. In 1998, the Paddocks instituted the

instant action, seeking damages for fraud, intentional infliction of emotional

distress, damage to credit rating and malicious prosecution.

                                            II.

       “We review de novo the district court’s grant of summary judgment,

applying the same standard used by the district court.”   Mann v. United States ,

204 F.3d 1012, 1015 (10th Cir. 2000). In this action, the Paddocks allege that

(1) First Union charged premiums for unauthorized insurance coverage, (2) First


                                           -3-
Union fraudulently obtained the Florida state court judgment against them, and

(3) such actions caused injury to their credit. As the district court properly

concluded, the class action settlement bars these claims under the doctrine of res

judicata, or claim preclusion. “Claim preclusion requires: (1) a judgment on the

merits in the earlier action; (2) identity of parties or their privies in both suits;

and (3) identity of the cause of action in both suits.”        Yapp v. Excel Corp. , 186

F.3d 1222, 1226 (10th Cir. 1999)     1
                                         . The class action was resolved by a final

judgment on the merits and both the Paddocks and First Union were parties to the

settlement. Our review of the matters raised in the class action and the instant

suit confirms that both actions “aris[e] out of the same transaction, or series of

connected transactions.”     Id. at 1227 (internal quotation marks and citation

omitted).    Therefore, the district court properly barred relitigation of the fraud

and damage to credit rating claims concerning the unauthorized insurance and the

Florida judgment.

       Plaintiffs also allege that First Union’s unsuccessful attempt to register the

Florida judgment in Oklahoma constituted fraud.           2
                                                              To establish a cause of action

for fraud under Oklahoma law, the Paddocks must plead and prove five elements:

       1
         Federal law applies here since we must determine the preclusive effect of
the federal judgment in the class action suit. Yapp , 186 F.3d at 1226.

       The Paddocks argued below that the attempted registration also constituted
       2

malicious prosecution and intentional infliction of emotional distress. They have
abandoned these claims on appeal.

                                              -4-
“(1) a material false representation, (2) made with knowledge of its falsity, or

recklessly made without knowledge of its truth, and as a positive assertion, (3)

with the intention that it be relied upon by another, (4) reliance thereon by

another party to its injury, and (5) that all elements be proven with a reasonable

degree of certainty.”   Whitson v. Oklahoma Farmers Union Mut. Ins. Co.      , 889

P.2d 285, 287 (Okla. 1995). The Paddocks have not created a genuine issue of

material fact on at least two of these elements. Regardless of the Paddocks’

subjective belief, First Union simply attempted to present a valid Florida

judgment to the Oklahoma courts. Such presentation does not amount to a

material misrepresentation. Furthermore, First Union voluntarily vacated the

registration proceeding, so the Paddocks cannot plausibly claim any detrimental

reliance.

       For substantially the reasons set forth in the district court’s order below, we

AFFIRM . 3




       The Paddocks argue on appeal that they are also entitled to recovery under
       3

RICO and the federal Truth in Lending Act. Since the district court denied the
Paddocks’ motion to amend their complaint to include these claims, these claims
are not properly before this court.

                                         -5-
ENTERED FOR THE COURT,



Deanell Reece Tacha
Circuit Judge




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