     Case: 14-40096      Document: 00512878686         Page: 1    Date Filed: 12/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40096
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 22, 2014
JOE O. RODRIGUEZ, JR.,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans;
RECONTRUST COMPANY, N.A.,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:13-CV-133


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
       Joe O. Rodriguez, Jr., filed a pro se complaint in Texas State Court
against Bank of America, N.A. (BOA) and Recontrust Co., N.A. (Recon) alleging
that the property located at 1211 Washington Street in Alice, Texas, was
improperly sold following foreclosure because BOA did not possess 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-40096

promissory note that was secured by the Washington Street property. 1 The
Defendants moved for summary judgment asserting, among other things, the
affirmative defense of res judicata.     The district court granted summary
judgment to all Defendants. Rodriguez appeals.
      We review the grant of summary judgment de novo.                Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).        A district court may grant
summary judgment under Federal Rule of Civil Procedure 56 if the record
demonstrates “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
Stauffer, 741 F.3d at 581.      Under the doctrine of res judicata or claim
preclusion, “a final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have been raised in
that action.” Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009)
(internal quotation marks and citation omitted). A claim is barred by the
doctrine of res judicata if the following four requirements are met: “(1) the
parties must be identical in the two actions; (2) the prior judgment must have
been rendered by a court of competent jurisdiction; (3) there must be a final
judgment on the merits; and (4) the same claim or cause of action must be
involved in both cases.” Id. (internal quotation marks and citation omitted).
      With respect to BOA, summary judgment was properly granted on the
basis of res judicata.   There is no dispute that BOA was a defendant in
Rodriguez’s prior lawsuit, thus satisfying the first requirement. The second
requirement is met because it has not been disputed that the federal district
court for the Southern District of Texas was a court of competent jurisdiction
to resolve the prior suit. Rodriguez’s principal challenge to the res judicata bar


      1  The case was originally brought against Recon and “Countrywide Home Loans
Servicing, L.P. or Bank of America, N.A., as Successor by Merger to BAC Home Loans
Servicing, L.P.” Only BOA and Recon are parties to the appeal.


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                                  No. 14-40096

is his assertion that the district court did not satisfy the third requirement
because it did not address his case on the merits. Rodriguez’s allegations of
errors in the dismissal of the first action that was not appealed does not defeat
an assertion of res judicata. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.
394, 398–99 (1981). His argument that the prior order was not an adjudication
on the merits because the district court did not state that the dismissal was
with prejudice as required by Federal Rule of Civil Procedure 41(a)(2) is
without merit because Rule 41(a)(2) applies to voluntary dismissals. Rule
41(b), however, specifically provides that, with some exceptions that do not
apply here, a dismissal for failure to prosecute operates as an adjudication on
the merits. See Nielsen v. United States, 976 F.2d 951, 957 (5th Cir. 1992). As
noted above, the fourth requirement is that the same cause of action must be
involved in both cases. As found by the district court, Rodriguez’s complaint,
that the defendants did not have the authority to foreclose on his property, is
based upon the same nucleus of operative facts as his prior suit. Rodriguez
does not dispute this finding.
      With respect to the claims against Recon, the district court properly
granted summary judgment on the merits. Rodriguez’s various claims are all
premised on a “show me the note” theory—i.e., Rodriguez argues that the
Defendants did not have the authority to foreclose on his home because they
were not owners and holders of the note and deed of trust. However, “the
mortgage servicer need not hold or own the note and yet would be authorized
to administer a foreclosure.” Martins v. BAC Home Loans Servicing, L.P., 722
F.3d 249, 255 (5th Cir. 2013). Moreover, based on the summary judgment
evidence, there is no genuine dispute of material fact that the defendants had
the authority to foreclose. Defendants have provided unrebutted evidence that




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                                       No. 14-40096

BOA was assigned the deed of trust and that the note was in default. 2
Furthermore, Rodriguez does not have standing to challenge the assignment,
as “under Texas law, facially valid assignments cannot be challenged for want
of authority except by the defrauded assignor.” Reinagel v. Deutsche Bank
Nat’l Trust Co., 735 F.3d 220, 228 (5th Cir. 2013). Therefore, the district court
did not err in granting summary judgment in favor of Recon.
       The grant of summary judgment in favor of Defendants is AFFIRMED.




       2The district court correctly denied Rodriguez’s motion to strike the declaration of
Jessica L. Valdez as impermissible hearsay. We have reviewed that declaration and
conclude, as did the district court, that it qualifies under the business records exception to
the hearsay rule. See Fed. R. Evid. 803(6).


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