               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0291n.06

                                         No. 12-5802

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
GMAC MORTGAGE, LLC, et al.,                                                   Jun 02, 2016
                                                                          DEBORAH S. HUNT, Clerk
       Plaintiffs-Appellees,
v.
                                                    ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
HEATHER MCKEEVER, et al.,
                                                    EASTERN DISTRICT OF KENTUCKY
       Defendants-Appellants.


______________________________/


BEFORE:       CLAY, GIBBONS, and STRANCH, Circuit Judges.

       CLAY, Circuit Judge.           Defendants Heather McKeever and Shane Haffey

(“McKeever”)1 appeal from the district court’s judgment in favor of Plaintiff Deutsche Bank.

The original plaintiff in this action, GMAC Mortgage, LLC (“GMACM”), filed suit in federal

district court seeking a declaration that McKeever’s purported rescission of the mortgage on her

home pursuant to the federal Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., was

invalid. The district court later granted GMACM’s motion to substitute Deutsche Bank as

plaintiff; summary judgment in favor of Deutsche Bank followed. On appeal, McKeever argues

that the district court erred by: (1) allowing GMACM to substitute Deutsche Bank as plaintiff;

and (2) granting Deutsche Bank’s motion for summary judgment. For the reasons set forth

below, we AFFIRM the district court’s judgment in full.

       1
         McKeever is a co-defendant along with her husband, Shane Haffey. For the sake of
simplicity, and because McKeever served as her and Haffey’s counsel in this case, we use
McKeever’s name to refer to both defendants collectively.
                                             No. 12-5802


                                          BACKGROUND

       A.       Civil Action No. 5:08-cv-00459 (“Case No. 08-459”) and Appeal No. 12-5802

       McKeever appeals from one of five consolidated cases litigated in federal district court,

all of which concern the mortgage on her home located at 3250 Delong Road, Lexington,

Kentucky (the “Property”).2 The originating case for this appeal, Case No. 08-459, was filed by

GMACM on November 7, 2008. GMACM’s complaint alleged that in May 2007, McKeever

entered into an agreement whereby she received a $1,000,000 loan secured by a mortgage on her

home (the “Loan”). GMACM averred that it was currently the servicer of the Loan on behalf of

Deutsche Bank. The complaint further stated that “[o]n or about October 15, 2008, [McKeever]

sent correspondence to” GMACM purporting to rescind the Loan under the TILA and a

regulation promulgated thereunder, 12 C.F.R. § 226.23 (“Regulation Z”). (No. 08-459, R. 1,

PageID 2.)

       Regulation Z states, in pertinent part:

       (a) Consumer’s right to rescind.

             (1) In a credit transaction in which a security interest is or will be retained or
             acquired in a consumer’s principal dwelling, each consumer whose ownership
             interest is or will be subject to the security interest shall have the right to
             rescind the transaction . . . .

             (2) To exercise the right to rescind, the consumer shall notify the creditor of
             the rescission by mail, telegram or other means of written communication. . . .

             (3) The consumer may exercise the right to rescind until midnight of the third
             business day following consummation, delivery of the notice required by
             paragraph (b) of this section, or delivery of all material disclosures, whichever
             occurs last. If the required notice or material disclosures are not delivered, the
             right to rescind shall expire 3 years after consummation, upon transfer of all of
             the consumer’s interest in the property, or upon sale of the property,
             whichever occurs first. . . .

       2
         These cases are: Civil Action No. 5:08-cv-00456; Civil Action No. 5:08-cv-00459;
Civil Action No. 5:08-cv-00510; Civil Action No. 5:09-cv-00362; and Civil Action No. 5:11-cv-
00188. Only those cases relevant to this appeal are discussed herein.
                                                   2
                                           No. 12-5802


12 C.F.R. § 226.23 (footnotes omitted).3 GMACM’s complaint maintained that “[McKeever]

ha[s] not provided any specific detail as to any TILA violations that would give rise to the

purported recission [sic], and ha[s] given no other legitimate basis for the recission [sic].” (No.

08-459, R. 1, PageID 3.)

       McKeever thereafter filed a motion for judgment on the pleadings noting that in a related

federal district court action concerning the Property—Civil Action No. 5:08-cv-00510 (“Case

No. 08-510”)—GMACM had argued that it was not the “real party in interest” to the Loan

because it was merely “the current servicer of the loan on behalf of Deutsche Bank as trustee.”

(No. 08-459, R. 22, PageID 98–99.) McKeever argued that GMACM’s claims against her

should therefore be dismissed for lack of standing.

       In response to McKeever’s motion, the district court ordered GMACM to supply

supplemental briefing on Federal Rule of Civil Procedure 17’s requirement that an action be

prosecuted in the name of the real party in interest. GMACM answered with a motion to

substitute Deutsche Bank as plaintiff. In that motion, GMACM: (1) maintained that it had

standing because it was the servicer of the Loan, and because McKeever sent her rescission letter

to GMACM; and (2) requested that Deutsche Bank be substituted as plaintiff “in an abundance

of caution.” (No. 08-459, R. 39, PageID 243–44.) The district court granted GMACM’s motion

to substitute pursuant to Rule 17(a)(3) and denied McKeever’s motion for judgment on the

pleadings as moot.




       3
         The “material disclosures” to which Regulation Z refers “means the required disclosures
of the annual percentage rate, the finance charge, the amount financed, the total of payments, the
payment schedule, and the disclosures and limitations referred to in §§ 226.32(c) and (d) and
226.35(b)(2).” 12 C.F.R. § 226.23(a)(3) n.48.

                                                3
                                           No. 12-5802


       Proceeding as Plaintiff, Deutsche Bank filed a motion for summary judgment. In that

motion, Deutsche Bank argued that McKeever’s TILA rescission claim in Case No. 08-459 was

barred under the doctrines of res judicata and law-of-the-case because the district court’s ruling

in Case No. 08-510 already disposed of those claims. The district court agreed and issued an

order granting summary judgment to Deutsche Bank. In its order, the district court held:

       This court . . . has previously held that [McKeever’s] allegation of a rescission is
       without merit. [McKeever’s] rescission claim in [Case No. 08-510] was rejected
       when they asserted the claim as plaintiffs against GMAC. . . . Here, [McKeever]
       provide no new information on the issue that would constitute an extraordinary
       circumstance justifying a divergence from the court’s prior holdings; therefore,
       the law-of-the-case doctrine makes the court’s earlier rulings binding, and
       [McKeever’s] rescission claim is invalid.

(No. 08-459, R. 135, PageID 1318–19.) McKeever timely appealed.

       B.       Case No. 08-510

       As noted above, the district court order from which McKeever now appeals was decided

on the basis of the “law-of-the-case” doctrine, citing a ruling in Case No. 08-510. We therefore

discuss the relevant history of that case below.

       McKeever filed Case No. 08-510 in Kentucky state court on November 21, 2008,4

naming as defendants: (1) Mortgage Electronic Registration Systems, Inc. (“MERS”);

(2) GMACM; and (3) “Concealed and Unknown Persons who are the ‘Real Parties in Interest,’”

for whom GMACM is “the Loan Servicing Agent.” (No. 08-510, R. 1-4, PageID 12–13.) Case

No. 08-510 concerned the same Loan secured by a mortgage on McKeever’s home at issue in

Case No. 08-459. McKeever’s complaint made twelve claims against the named defendants in

that case, including a claim for rescission under TILA and Regulation Z. Her complaint alleged,

for example, that “[t]he Homeowners seek a remedy under . . . TILA . . . to obtain rescission

recognition.” (Id. at 14.)
       4
           Shane Haffey was again named as McKeever’s co-party in Case No. 08-510.
                                                   4
                                            No. 12-5802


          McKeever’s suit was removed to federal court, whereupon GMACM filed a motion to

dismiss pursuant to 12(b)(6). In analyzing GMACM’s motion, the district court observed that

McKeever “claim[s] to have rescinded the Note and Mortgage under the [TILA]” via the October

2008 letters sent to GMACM and MERS. (No. 08-510, R. 17, PageID 134.) The court then

found:

          The [October 2008] letters sought to rescind the Note and Mortgage and
          demanded a refund of all funds and interest paid. There are no statements in the
          letters that GMAC had violated any statute and no factual support for any role by
          GMAC, other than providing information upon request.

(Id. at 138.) On that basis, the district court granted GMACM’s motion and dismissed all of

McKeever’s claims—including those relating to rescission under the TILA—against GMACM.

          With McKeever’s claims against GMACM dismissed, litigation in Case No. 08-510

continued against the remaining named defendant, MERS. The district court later granted

MERS’s motion for summary judgment and entered final judgment against McKeever.

McKeever filed a motion to reconsider, arguing, inter alia, that the case should remain open so

she could prosecute her claims against the “‘John Doe’ Defendants, (the actual owners of

McKeever’s mortgage loan).”5 (No. 08-459, R. 81, PageID 616–17.)6 The district court denied

that motion, holding that McKeever failed to follow the proper procedures for pursuing claims

against unknown defendants.

          McKeever appealed from the judgment in Case No. 08-510, but this Court later dismissed

that appeal for lack of prosecution. McKeever’s subsequent motions to reinstate the appeal were

denied.
          5
        Notably, GMACM notified McKeever that it was servicing the Loan on behalf of
Deutsche Bank in its complaint for Case No. 08-459, filed on November 7, 2008—some two
weeks before McKeever even filed Case No. 08-510.
          6
        Due to the consolidation of cases concerning the Property, some motions and orders for
Case No. 08-510 were filed on the docket for Case No. 08-459.
                                                 5
                                            No. 12-5802


                                          DISCUSSION

I.     The District Court Did Not Err by Granting GMACM’s Motion to Substitute
       Deutsche Bank as Plaintiff

                                       Standard of Review

       Questions regarding a plaintiff’s Article III standing are reviewed de novo. Schultz v.

United States, 529 F.3d 343, 349 (6th Cir. 2008).

                                              Analysis

       Below, McKeever moved for judgment on the pleadings, arguing that mortgage servicer

GMACM lacked standing to bring claims related to the Loan because Deutsche Bank actually

held the mortgage. The district court denied that motion as moot after granting GMACM’s

motion to substitute Deutsche Bank as plaintiff. On appeal, McKeever notes that “[t]he Order

Granting the Motion to Substitute cites to Rule 17(a), but is silent as to the threshold issue of

standing.” (Pet’rs’ Br. at 28.) She thereafter contends that the district court lacked jurisdiction

to grant GMACM’s Rule 17(a) motion because GMACM did not have standing to make that

motion in the first place. Although McKeever cites no cases in support of this argument, the

argument has some merit.

       Federal Rule of Civil Procedure 17(a)(1) requires that an action “be prosecuted in the

name of the real party in interest.” The Rule goes on to state:

       The court may not dismiss an action for failure to prosecute in the name of the
       real party in interest until, after an objection, a reasonable time has been allowed
       for the real party in interest to ratify, join, or be substituted into the action. After
       ratification, joinder, or substitution, the action proceeds as if it had been originally
       commenced by the real party in interest.

Fed. R. Civ. P. 17(a)(3). Deutsche Bank argues that this language renders standing defects moot

upon the substitution of the real party in interest. However, in Zurich Ins. Co. v. Logitrans, Inc.,

297 F.3d 528 (6th Cir. 2002), we held that where a plaintiff “admittedly has not suffered injury

                                                  6
                                            No. 12-5802


in fact by the defendants, it had no standing . . . to make a motion to substitute the real party in

interest [under Rule 17].” Id. at 531.

       In Zurich, the plaintiff insurance company filed a claim on behalf of its purported

insured. Id. at 530. It was later discovered that the actual insurer was a sister company of the

plaintiff—both insurance companies were under common ownership of a single “grandparent”

entity. See id. at 533 (Gilman, J., concurring). The defendant moved to dismiss the plaintiff’s

suit for lack of standing; the plaintiff moved to substitute its sister company pursuant to Rule

17(a). Id. at 530. The district court granted the defendant’s motion and dismissed the suit. Id.

We affirmed dismissal of the action for lack of standing, holding that Rule 17(a) could not be

used to allow the true insurer, “which was not vigilant in protecting its claims,” the benefit of the

plaintiff insurance company’s mistake. Id. at 532. “The Federal Rules of Civil Procedure cannot

expand the subject matter jurisdiction of federal courts,” we explained, and Rule 17(a) “must be

read with the limitation that a federal district court must, at a minimum arguably have subject

matter jurisdiction over the original claims.” Id. at 531.

       Zurich thus establishes that in order for GMACM to have succeeded on its motion to

substitute Deutsche Bank, it must have had standing to pursue that motion in the first instance.

“The ‘well established’ law of Article III standing requires a plaintiff to ‘allege personal injury

fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the

requested relief.’” Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012) (quoting

Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 598 (2007)). The plaintiff’s injury,

moreover, must be “(a) concrete and particularized . . . and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal




                                                  7
                                            No. 12-5802


citations and quotation marks omitted). “We look to the complaint and any accompanying

materials in deciding standing questions.” Murray, 681 F.3d 748.

       We find that unlike the plaintiff in Zurich, GMACM has proffered facts sufficient to

establish its own Article III standing and, therefore, to pursue its motion to substitute Deutsche

Bank as plaintiff. GMACM’s complaint alleged that it was the servicer of the McKeever’s loan

on behalf of Deutsche Bank. At least one of our sister circuits has found that the rights held by a

loan servicer grant it standing to prosecute cases relating to the debt that it services. See Greer v.

O’Dell, 305 F.3d 1297, 1302 (11th Cir. 2002) (“[T]he sole issue before us is whether a loan

servicer is a ‘real party in interest’ with standing to conduct, through licensed counsel, the legal

affairs of the investor relating to the debt that it services. We answer this question in the

affirmative.”); see also In re Woodberry, 383 B.R. 373, 376–79 (Bankr. D.S.C. 2008) (collecting

cases and holding that a loan servicer with a contractual duty to collect payments and foreclose

mortgages has standing to move for relief of stay in bankruptcy proceedings involving the loan

being serviced).

       GMACM’s motion to substitute provided additional information establishing GMACM’s

standing to pursue that motion. Attached to the motion was the servicing agreement between

Deutsche Bank and GMACM. That agreement states that as servicer of Deutsche Bank’s loans,

GMACM was entitled to certain compensation, including “assumption fees, late payment

charges, [and] investment income . . . .” (No. 08-459, R. 39-1, Decl. of Judy Faber, PageID

281.) GMACM necessarily stood to lose any such compensation that arose from servicing

McKeever’s loan as a result of her purported rescission.           GMACM therefore established

“concrete and particularized” injuries that were “fairly traceable to” McKeever’s conduct. See

Lujan, 504 U.S. 560 (internal alterations and quotation marks omitted). Thus, GMACM had



                                                  8
                                            No. 12-5802


standing to pursue its motion to substitute Deutsche Bank as the real party in interest, and the

district court did not err by addressing that motion on the merits.

II.    McKeever’s TILA Rescission Claim in Case No. 08-459 Is Barred by the District
       Court’s Judgment in Case No. 08-510

                                       Standard of Review

       Although a district court has some discretion to revisit an already-decided issue or let its

decision stand as “law of the case,” see United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990),

“[w]hether a prior decision constitutes law of the case is a legal issue that we review de novo.”

Stewart v. Beach, 701 F.3d 1322, 1329 (10th Cir. 2012); see also 36 C.J.S. Federal Courts § 602

(2016) (“[w]hether the law-of-the-case doctrine applies in a specific instance is a question of

law”). Application of the doctrine of res judicata is also a question of law to be reviewed de

novo. Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009).

                                             Analysis

       Below, the district court held that McKeever’s TILA rescission claim was barred by the

court’s prior ruling in consolidated Case No. 08-510. In so doing, the court cited to the “law-of-

the-case” doctrine. On appeal, Deutsche Bank argues that the district court properly applied that

doctrine; and, in the alternative, that the district court’s judgment in Case No. 08-510 was res

judicata, thus constituting another basis on which we may affirm. See La. Sch. Emps.’ Ret. Sys.

v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010) (“[W]e may affirm the judgment of

the district court on any ground supported by the record.”). For the reasons discussed below, we

conclude that the law-of-the-case doctrine was inappropriately applied in this case, but we agree

that res judicata provides another basis on which to affirm.




                                                 9
                                           No. 12-5802


       A.      Law-Of-The-Case Doctrine

       The law-of-the-case doctrine “provides that the courts should not reconsider a matter

once resolved in a continuing proceeding.” Howe v. City of Akron, 801 F.3d 718, 739 (6th Cir.

2015) (internal quotation marks omitted). Describing the doctrine, the Supreme Court has stated:

       A court has the power to revisit prior decisions of its own or of a coordinate court
       in any circumstance, although as a rule courts should be loathe to do so in the
       absence of extraordinary circumstances such as where the initial decision was
       “clearly erroneous and would work a manifest injustice.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).7 Thus, like the doctrines

of claim and issue preclusion, law-of-the-case is designed to “prevent[] the relitigation of an

issue once there has been a judgment on the merits.” Bowles v. Russell, 432 F.3d 668, 676 (6th

Cir. 2005) (citing 18 Moore’s Federal Practice § 134.20 (Matthew Bender 3d ed.)); see also

Howe, 801 F.3d at 740 (observing that law-of-the-case doctrine “is a prudential practice”

intended “to encourage efficient litigation and deter indefatigable diehards” (internal quotation

marks omitted)).

       Unlike claim or issue preclusion, however, the law-of-the-case doctrine is not used to

prevent relitigation of the same issues across different cases; rather, “[t]he purpose of the law-of-

the-case doctrine is to ensure that the same issue presented a second time in the same case in the

same court should lead to the same result.” Howe, 801 F.3d at 739 (emphases in original)

(internal quotation marks omitted); see also Arizona v. California, 460 U.S. 605, 618 (1983)

(“the [law-of-the-case] doctrine posits that when a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages in the same case”); 18B Charles

Alan Wright et al., Federal Practice & Procedure: Jurisdiction & Related Matters § 4478 (4th
       7
          The term “law-of-the-case” is also used to describe the binding effect of appellate
decisions on remand to the originating court. See, e.g., United States v. Todd, 920 F.2d 399, 403
(6th Cir. 1990) (observing that one purpose of the doctrine is “to assure compliance by inferior
courts with the decisions of superior courts”).
                                                 10
                                           No. 12-5802


ed. 2015) (“Law-of-the-case rules have developed to maintain consistency and avoid

reconsideration of matters once decided during the course of a single continuing lawsuit. They

do not apply between separate actions.” (footnotes omitted)); Joan Steinman, Law of the Case: A

Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation (“Law of

the Case”), 135 U. Pa. L. Rev. 595, 597–98 (1987) (describing law-of-the-case doctrine as “a

concept that precludes the relitigation of issues within the context of a single case once they have

been decided”).

       This raises the question of whether consolidated cases, like those at issue here, can be

considered the “same case” for law-of-the-case purposes. In answering this question, we begin

with the well-established principle “that consolidated cases remain separate actions.” Beil v.

Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994). “[A]lthough consolidation is

permitted as a matter of convenience and economy in administration, it does not merge the suits

into a single cause, or change the rights of the parties, or make those who are parties in one suit

parties in another.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 412 (6th Cir. 1998) (internal

brackets and quotation marks omitted) (quoting Johnson v. Manhattan Ry., 289 U.S. 479, 496–

97 (1933)).    Using the law-of-the-case doctrine to bar relitigation of similar issues across

consolidated cases would therefore seem to implicate the bedrock principle of due process that

“one is not bound by a judgment in personam in a litigation in which he is not designated as a

party or to which he has not been made a party by service of process.” Hansberry v. Lee,

311 U.S. 32, 40 (1940).

       We note, however, that this principle of due process is not offended when a judgment

from one case is used to bar relitigation in a different case, so long as “the party against whom an

estoppel is asserted had a full and fair opportunity to litigate” the precluded claim or issue in the



                                                 11
                                            No. 12-5802


first action. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971). This

is the concept of res judicata, see id., which encompasses both the claim- and issue-preclusion

doctrines. Mitchell v. Chapman, 343 F.3d 811, 818 n.5 (6th Cir. 2003). What differentiates the

preclusion doctrines from law-of-the-case, however, are their more rigorous analyses that ensure

they are applied to bar only those claims or issues that have been fully and fairly litigated. See

Blonder-Tongue, 402 U.S. at 329 (describing the determination of a prior full and fair

opportunity to litigate as “a most significant safeguard”).

       The common law rules governing use of the law-of-the-case doctrine are understandably

less involved: because the doctrine presumes application within a single case, and thus an

identity of parties and claims, see Howe, 801 F.3d at 739, the sole requirement for its application

is that the court must have already “actually decided” the relevant issue. Id. at 739–40 (noting,

for example, that an issue has not been “actually decided” where it was “assumed without

decision for purposes of resolving another issue”). That limited inquiry, however, will not

always be sufficient to protect the parties’ rights when barring claims across consolidated cases.

This is especially true in circumstances where the consolidated cases involve different parties or

different underlying factual circumstances.       In such instances, applying the more rigorous

inquiries of claim or issue preclusion will better ensure that only fully and fairly litigated claims

or issues are barred. Cf. Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1317 (7th Cir. 1995)

(“The doctrine that limits the relitigation of an issue in a subsequent suit, as opposed to a

subsequent stage of the same suit, is collateral estoppel, not law of the case.”).

       Based on the above, we hold that the district court erred by using the law-of-the-case

doctrine to preclude McKeever’s TILA rescission claim in Case No. 08-459 on the basis that the

court had already decided that issue against her in consolidated Case No. 08-510. Although



                                                 12
                                          No. 12-5802


those two cases were consolidated for the sake of convenience and judicial economy, such

consolidation did not merge them into a single cause. Lewis, 135 F.3d at 412. Moreover, as

evidenced by our discussion in section II-B, infra, a more thorough analysis was needed to

determine whether it was fair to preclude McKeever from relitigating her TILA rescission claim

against Deutsche Bank where she previously litigated that claim against GMACM. Thus, the

district court should have applied either claim or issue preclusion to analyze whether

McKeever’s TILA rescission claim was barred in Case No. 08-459. See Rodriguez v. Passinault,

637 F.3d 675, 689 n.6 (6th Cir. 2011) (concluding in dicta that the law-of-the-case doctrine does

not apply between consolidated cases because “consolidation under Fed. R. Civ. P. 42 does not

render rulings in one case applicable to a consolidated action”); Steinman, Law of the Case, 135

U. Pa. L. Rev. at 626 (“[A] court faced with an apparent law of the case problem should first ask

whether the requested ruling is on an issue that has been previously decided in the particular

case, and not merely in another component of the consolidation.”).

       B.      Res Judicata

       As noted above, Deutsche Bank argues that we may affirm the district court’s judgment

on alternative grounds: regardless of whether the district court appropriately applied the law-of-

the-case doctrine to bar McKeever’s TILA rescission claim in Case No. 08-459, that claim was

barred because the district court’s judgment in Case No. 08-510 constituted res judicata. “Res

judicata generally includes two separate concepts—claim preclusion and issue preclusion.”

Mitchell, 343 F.3d at 818 n.5. In this instance, Deutsche Bank relies on claim preclusion, which

“refers to effect of a prior judgment in foreclosing a subsequent claim that has never been

litigated, because of a determination that it should have been advanced in an earlier action.” Id.




                                               13
                                           No. 12-5802


McKeever, Deutsche Bank argues, could and should have fully litigated her TILA rescission

claim in Case No. 08-510, and therefore that claim is barred.

       “The preclusive effect of a federal-court judgment is determined by federal common

law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). Under the federal common law doctrine of

claim preclusion, “a final judgment on the merits bars further claims by parties or their privies

based on the same cause of action.” Bragg, 570 F.3d at 776 (quoting Montana v. United States,

440 U.S. 147, 153 (1979)).

       Under this Court’s articulation of [claim preclusion], a claim will be barred by
       prior litigation if the following elements are present: (1) a final decision on the
       merits by a court of competent jurisdiction; (2) a subsequent action between the
       same parties or their “privies”; (3) an issue in the subsequent action which was
       litigated or which should have been litigated in the prior action; and (4) an
       identity of the causes of action.

Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997) (emphasis in original).

       In this case, there is no dispute that Case No. 08-510 ended in a final decision on the

merits by a court of competent jurisdiction. Moreover, Case No. 08-459 involved an issue—

namely, whether McKeever’s letters effected a valid rescission of the Loan—which either was or

should have been fully litigated in Case No. 08-510.            Finally, both cases arose out of

McKeever’s mortgage on the Property and therefore involved the same causes of action. See

Browning v. Levy, 283 F.3d 761, 773–74 (6th Cir. 2002) (holding identity of causes of action

element satisfied where “the claims arose out of the same core of operative facts”). Thus, the

primary issue is whether Deutsche Bank is entitled to the benefits of the district court’s judgment

against McKeever on her TILA rescission claim in Case No. 08-510, even though Deutsche

Bank was not a named party in that case.

       As the above recitation of the elements of claim preclusion indicates, a party in a

subsequent action may receive the benefit of a prior judgment if it is in “privity” with a named


                                                14
                                             No. 12-5802


party. Bittinger, 123 F.3d at 880. We note, however, that the term “privity” by itself is not

particularly instructive. See, e.g., Restatement (Second) of Judgments § 62 cmt. c (1982) (“[T]he

term ‘privity,’ unless it refers to some definite legal relationship . . . is so amorphous that it often

operates as a conclusion rather than an explanation.”); 18A Wright et al., Federal Practice &

Procedure: Jurisdiction & Related Matters § 4449 (4th ed. 2015) (“[I]t has come to be

recognized that the privity label simply expresses a conclusion that preclusion is proper.”);

Taylor, 553 U.S. at 894 n.8 (noting that the term “privity” has “come to be used . . . as a way to

express the conclusion that nonparty preclusion is appropriate on any ground”). Rather, an

examination of “privity” involves determining whether the circumstances of a particular case fit

within discrete exceptions to the general rule against nonparty preclusion. See Taylor, 553 U.S.

at 898 (rejecting an “amorphous balancing test” for allowing nonparty preclusion in favor of

“discrete exceptions that apply in limited circumstances” (internal quotation marks omitted)).

        In Taylor, the Supreme Court provided a non-exhaustive list of such exceptions. Id. at

893–95. Relevant here, the Court in Taylor noted that “in certain limited circumstances, a

nonparty may be bound by a judgment because she was adequately represented by someone with

the same interests who was a party to the suit.” Id. at 894 (internal brackets and quotation marks

omitted) (quoting Richards v. Jefferson Cty., 517 U.S. 793, 798 (1996)); see also Restatement

(Second) of Judgments § 41 (1982) (“A person who is not a party to an action but who is

represented by a party is bound by and entitled to the benefits of a judgment as though he were a

party.” (emphasis added)). Taylor went on to provide a rule for this exception’s application:

        A party’s representation of a nonparty is “adequate” for preclusion purposes only
        if, at a minimum: (1) The interests of the nonparty and her representative are
        aligned; and (2) either the party understood herself to be acting in a representative
        capacity or the original court took care to protect the interests of the nonparty.

Id. at 900.


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       These requirements are met in this case. GMACM’s briefing on its motion to dismiss in

Case No. 08-510 reveals that its interests with regard to the Loan were, unsurprisingly, aligned

with Deutsche Bank’s.      In that briefing, GMACM argued that McKeever’s claims against

GMACM failed because the claims were premised on the allegedly fraudulent acts of nonparty

Bank of the Bluegrass (“BOTB”) in originating the Loan. GMACM thereafter asserted that

McKeever could not maintain her claims—including her claim for rescission under the TILA—

based on BOTB’s fraudulent conduct because “GMACM did not originate [McKeever’s] loan,

was not present at the closing table, and cannot have liability for the allegations set forth against

BOTB.” (See Case. No. 08-510, R. 7-2, PageID 97.) These arguments by GMACM necessarily

concerned the same interest in the Property—i.e., the right to collect on the Loan or foreclose on

the Property despite McKeever’s purported rescission—as held by Deutsche Bank. And because

GMACM’s arguments were germane to both Deutsche Bank’s and its own interests, nothing in

the record leads us to believe that GMACM did not understand itself to be acting as a

representative of Deutsche Bank in Case No. 08-510.

       McKeever’s own complaint in Case No. 08-510 makes clear that she, too, understood

GMACM to be acting as a representative of another party. For example, paragraph three of her

complaint states that

       [t]he Defendant GMAC Mortgage, LLC, . . . is served as a Defendant in several
       capacities: As a corporate Defendant in its own right . . . and as both the Loan
       Servicing Agent and Agent for Service of Process for the Defendants named as
       the Concealed and Unknown Persons who are the “Real Parties in Interest,” who
       are the Concealed True Lender(s) and/or Holder(s) in Due Course as to Claim any
       Interest [in the Property].

(No. 08-510, R. 1-4, PageID 13.) Notably, GMACM identified Deutsche Bank as the entity on

whose behalf GMACM was servicing the Loan in its complaint in Case No. 08-459, filed some

two weeks before McKeever filed the above-quoted complaint in Case No. 08-510.


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       The record thus contains ample evidence indicating that GMACM served as an adequate

representative of Deutsche Bank in Case No. 08-510, that McKeever was on notice of such

representation, and that Deutsche Bank is therefore entitled to the benefits of the judgment in

Case No. 08-510.

       This conclusion is supported by the Supreme Court’s reasoning in Chicago, R. I. & P. Ry.

Co. v. Schendel, 270 U.S. 611 (1926). In Schendel, the Court addressed the relationship between

two actions arising out of the death of a single railway employee. Id. at 612. The first action

was initiated by the administrator of the employee’s estate for the benefit of his widow. Id. at

614. The second action was a state administrative proceeding brought by the railway company

under a state workmen’s compensation law. Id. The employee’s widow was made a party to the

administrative action as the sole beneficiary of any resulting workmen’s compensation. Id. The

second-filed action concluded first, resulting in judgment and an award of benefits to the widow.

Id. The Supreme Court held that the judgment in the second-filed action precluded further

litigation in the first, even though the first action was brought by the administrator of the

employee’s estate. Id. at 618.

       In so holding, the Court in Schendel concluded that the widow and the administrator of

her husband’s estate were functionally the same party. See id. at 620 (“Identity of parties is not a

mere matter of form, but of substance. Parties nominally the same may be, in legal effect,

different; and parties nominally different may be, in legal effect, the same.”); see also 47 Am.

Jur. 2d Judgments § 595 (“For the purpose of res judicata or collateral estoppel, the courts will

look beyond the nominal parties of record to determine the real parties in interest.”).

“[E]ssential” to the Court’s conclusion was the fact that “it is the right of the widow, and of no

one else, which was presented and adjudicated in both courts.” Schendel, 270 U.S. at 618. The



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Court explained that because both actions involved the same right, the widow would have been

bound no matter which action had concluded first. Id. This parity in potential outcome rendered

the widow and the administrator of her husband’s estate the same party for preclusion purposes.

Id.

       The same is true in this case. Case Nos. 08-459 and 08-510 both concerned Deutsche

Bank’s right to collect on the Loan and foreclose on the Property despite McKeever’s purported

rescission under the TILA. We have no reason to doubt that regardless which case resulted in

final judgment first, that judgment would have been conclusive as to Deutsche Bank’s interest in

the Property. This is so, even though GMACM acted as the representative of Deutsche Bank’s

right to continue collecting on the Loan in Case No. 08-510. In sum, applying claim preclusion

in this case comports with the principle “that questions of preclusion by representation ‘must be

determined as a matter of substance and not of mere form,’ according to an identification of the

interests advanced in the first action.” 18A Wright et al., Federal Practice & Procedure:

Jurisdiction & Related Matters § 4454 (4th ed. 2015) (quoting Schendel, 270 U.S. at 618); see

also 47 Am. Jur. 2d Judgments § 595 (“Privity involves a person so identified in interest with

another that he or she represents the same legal right.”); R.G. Fin. Corp. v. Vergara-Nunez, 446

F.3d 178, 185–187 (1st Cir. 2006) (holding mortgage servicer and mortgage holder were

sufficiently identical under Puerto Rico law to justify precluding action by mortgagors to rescind

under TILA where mortgage servicer had already secured a default judgment against the

mortgagors in a foreclosure action).

       Finally, McKeever argues that the Supreme Court’s decision in Jesinoski v. Countrywide

Home Loans, 135 S. Ct. 790 (2015), rendered the judgment in Case No. 08-510 “void.” Without

commenting on Jesinoski’s effect on the district court’s holding in Case No. 08-510, we note that



                                               18
                                           No. 12-5802


the principles of claim preclusion apply “even if an intervening decision effects a change in the

law which bears directly on the legal theory advanced in the second suit.” Harrington v.

Vandalia-Butler Bd. of Ed., 649 F.2d 434, 437 (6th Cir. 1981); see also Federated Dep’t Stores,

Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“[A]n erroneous conclusion reached by the court in the

first suit does not deprive the defendants in the second action of their right to rely upon the plea

of res judicata.” (internal quotation marks omitted)); In re Tenn. Cent. Ry. Co., 498 F.2d 904,

906 (6th Cir. 1974) (“The principles of res judicata would govern disposition of this case, even if

there had been . . . a change in controlling case law.”). “The purpose of res judicata is to

promote the finality of judgments and thereby increase certainty, discourage multiple litigation,

and conserve judicial resources.” Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.

1981). This purpose would be frustrated by allowing McKeever to collaterally attack a judgment

from which she forfeited her right to appeal by failing to prosecute.8

       We therefore conclude that the district court improperly applied the law-of-the-case

doctrine to bar McKeever’s rescission claims in Case No. 08-459. Even so, we affirm because

McKeever’s claims were barred under the doctrine of claim preclusion by the court’s judgment

in Case No. 08-510.

                                         CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s judgment in full.




       8
          On September 15, 2015—nearly five years after the district court entered final judgment
in Case No. 08-510—McKeever filed a motion to vacate the judgment in that case pursuant to
Federal Rule of Civil Procedure 60. McKeever argued in that motion, as she does in this appeal,
that the district court’s judgment in Case No. 08-510 was rendered void by Jesinoski. We have
no occasion to comment upon that motion, except to note that it was denied by the district court
on March 24, 2016. Thus, in any event, that motion has no bearing on our reasoning in this case.
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