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                                  No. 12-CV-608

                           U.S. BANK, N.A., APPELLANT,

                                         V.

                   1905 2ND STREET NE, LLC ET AL., APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB 6205-10)
                          (Hon. Craig Iscoe, Trial Judge)

      Michael S. Steadman, with whom Michael N. Russo was on the brief, for
appellant.
      Patrick J. Kearney, with whom Michael J. Bramnick was on the brief, for
appellee 1905 2nd Street NE, LLC.

      Rawle Andrews Jr. for appellee Wilson.

(Argued February 27, 2013                                   Decided March 6, 2014)


      Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING,
Senior Judge.

      BECKWITH, Associate Judge: Appellant U.S. Bank appeals the partial grant

of appellee 1905 2nd Street NE, LLC‟s motion for summary judgment in what is

essentially a competition of claims in title interest to property previously owned by

Calvert Wilson at 1905 2nd Street N.E. in the District of Columbia. The trial court

granted U.S. Bank‟s motion for summary judgment in part and denied it in part,
                                          2

granting summary judgment to appellees Calvert Wilson and 1905 2nd Street NE,

LLC (1905 LLC), on three of U.S. Bank‟s claims based on res judicata. While the

question of law underlying appellant‟s claims is related to the subject of prior

litigation, U.S. Bank has not been involved in any of those prior lawsuits, and was

not a party in privity as required for res judicata to apply. We therefore reverse the

trial court‟s grant of summary judgment on the quiet title, equitable lien, and

equitable mortgage counts and remand so that the trial court may consider the

merits of U.S. Bank‟s claims.


                                          I.


      In 1996, Calvert Wilson acquired fee simple title interest in residential real

property located at 1905 2nd Street N.E. and financed the purchase through a

mortgage with Summit Mortgage Group.           After a series of assignments, Mr.

Wilson‟s debt was ultimately held by ABN AMRO Mortgage Group, Inc. (ABN

AMRO). In 2001, Wilson‟s personal finances grew strained and he filed for

personal bankruptcy.    In 2004, ABN AMRO initiated foreclosure proceedings

against him.


      At this time, sales representatives from a company called Home Savers, LLC

(sometimes called Home Savers, Plus, LLC) approached Mr. Wilson about

foreclosure rescue arrangements. Managed by Barrett Ware and others, Home
                                          3

Savers creates subsidiary limited liability corporations in order to buy and sell real

property. According to deposition testimony, Home Savers, through its subsidiary

1905 LLC, suggested a buy-back rescue arrangement in which Mr. Wilson would

sell the property to 1905 LLC, avoid foreclosure, and eventually buy the property

back from the company.       Mr. Wilson vehemently declined this arrangement,

insisting that he was unwilling to sell his property. After multiple assurances that

he would not be selling his property, however, Mr. Wilson accepted 1905 LLC‟s

second suggested arrangement, which 1905 LLC characterized as an equity sharing

agreement. Under this arrangement, 1905 LLC paid the outstanding arrears on the

property to avoid foreclosure, which amounted to $30,535.14. Mr. Wilson signed

a deed (the foreclosure rescue deed) placing title interest in the property in 1905

LLC, and the company agreed to hold the deed in escrow unless and until Mr.

Wilson was unable to obtain a refinance loan of at least $230,000 within sixty days

and pay 1905 LLC $122,656.07 of that sum. If Mr. Wilson did not refinance and

pay the company within sixty days, the parties agreed that 1905 LLC would record

the deed. 1905 LLC granted Mr. Wilson a number of extensions, both in writing

and verbally, while Mr. Wilson sought refinancing beyond the sixty-day window.


      Throughout that time period, Mr. Wilson attempted to find a lender to

refinance his home. Eventually, he obtained a refinance loan from New Century

Mortgage Company (New Century), U.S. Bank‟s predecessor in interest, in the
                                        4

amount of $262,000. In exchange, Mr. Wilson granted a deed of trust interest

against his home, giving New Century a security interest in the property. This

deed was signed on November 7, 2005, but New Century did not record the deed

until November 16, 2005. On November 9, 2005, however—seven days prior to

the recording of New Century‟s deed—1905 LLC recorded its foreclosure rescue

deed, believing that Mr. Wilson would not be able to secure refinancing. Shortly

after Mr. Wilson obtained refinancing through New Century, he saw a paper on the

door of his house stating that 1905 LLC owned the property.


      In January 2006, Mr. Wilson filed a lawsuit in United States District Court

against 1905 LLC and its two sales representatives challenging the validity of the

foreclosure rescue deed. Wilson v. Home-Savers, LLC, et al., Case Number 06-

0069 (JDB) (D.D.C. April 24, 2006). Mr. Wilson argued that the foreclosure

rescue deed was invalid because it was signed during the pendency of Mr.

Wilson‟s bankruptcy proceedings. Because that claim arose under the Bankruptcy

Code (11 U.S.C § 101 et seq.), U.S. District Court Judge John Bates issued an

order referring it to the U.S. Bankruptcy Court. In August 2006, U.S. Bankruptcy

Judge S. Martin Teel, Jr., ruled that the deed was valid under bankruptcy law

because at the time that the foreclosure rescue deed was signed, the property was

vested in Mr. Wilson, not the bankruptcy estate, and Mr. Wilson could therefore

transfer interest in the property. On October 30, 2006, after the remaining claims
                                         5

were referred back to U.S. District Court, Mr. Wilson voluntarily dismissed the

remaining claims.


      Mr. Wilson then brought a new action in D.C. Superior Court challenging

the validity of the foreclosure rescue deed. Wilson v. Home-Savers Plus, LLC, et

al., Civil Action No. 06 CA 8081 (D.C. Sup. Ct. Dec. 16, 2008). Superior Court

Judge Natalia Combs Greene, citing principles of res judicata, determined that

most of Mr. Wilson‟s claims had been conclusively adjudicated and decided by

Judge Teel in the Bankruptcy Court and that Mr. Wilson waived his opportunity to

litigate the remaining claims when he voluntarily dismissed those claims in the

District Court. Id. Mr. Wilson did not appeal that ruling.


      In the present case, U.S. Bank sued both Mr. Wilson and 1905 LLC in

Superior Court, challenging the validity of the foreclosure rescue deed, claiming

title, and seeking contract damages.1     U.S. Bank moved for partial summary



      1
         Specifically, U.S. Bank‟s Second Amended Complaint lists the following
six counts:

            1.   Quiet title;
            2.   Declaratory judgment—equitable lien;
            3.   Declaratory judgment—equitable subrogation;
            4.   Declaratory judgment—equitable mortgage;
            5.   Unjust enrichment; and
            6.   Breach of contract.

                                                                   (continued…)
                                         6

judgment on counts 3 through 6, and 1905 LLC moved for summary judgment on

all counts, arguing that Mr. Wilson was not the owner of the property and did not

have the authority to grant a deed of trust to U.S. Bank. Superior Court Judge

Craig Iscoe granted summary judgment in favor of U.S. Bank on the counts of

equitable subrogation (count 3), unjust enrichment (count 5), and breach of

contract (count 6). Relying on Judge Combs Greene‟s order from the proceedings

between Mr. Wilson and 1905 LLC, which held that the validity of the foreclosure

rescue deed had been conclusively litigated in the Bankruptcy Court, Judge Iscoe

granted summary judgment to 1905 LLC on counts 1, 2, and 4, holding that

principles of res judicata barred U.S. Bank‟s challenge to the validity of the

foreclosure rescue deed. U.S. Bank appeals the partial grant of summary judgment

to 1905 LLC on these counts.2


                                         II.


      We review the denial of summary judgment de novo. Jones v. Thompson,

(…continued)
The trial court‟s order mistakenly omits equitable mortgage (count 4) in that part of
the order entering final judgment, although it does address all six claims in its
discussion. For clarity, we will address the counts here as numbered in U.S.
Bank‟s Second Amended Complaint.
      2
         Because no counter-appeal was filed, the three counts on which the trial
court granted summary judgment in favor of U.S. Bank—equitable subrogation,
unjust enrichment, and breach of contract—are not before us.
                                           7

953 A.2d 1121, 1124 (D.C. 2008). Similarly, “[w]hether the trial court correctly

applied res judicata principles to the facts of this case is a legal issue that we

decide de novo.” Shin v. Portals Confederation Corp., 728 A.2d 615, 618 (D.C.

1999). Res judicata bars “relitigation of the same cause of action between the

original parties or those in privity with them” when there has been “a prior

judgment on the merits.” Goldkind v. Snider Bros., Inc., 467 A.2d 468, 473 (D.C.

1983).


      “Privity has been described as mutual or successive relationships to the same

right of property, or such an identification of interest of one person with another as

to represent the same legal right.” Carr v. Rose, 701 A.2d 1065, 1075 (D.C. 1997)

(internal citations and quotation marks omitted). “Traditional categories of privies

include „those who control an action although not parties to it . . .; those whose

interests are represented by a party to the action . . .; [and] successors in interest.‟”

Patton v. Klein, 746 A.2d 866, 870 (D.C. 1999) (quoting Carr v. Rose, 701 A.2d at

1075 (internal citations and quotation marks omitted) (alteration in original)). See

also Smith v. Jenkins, 562 A.2d 610, 615 (D.C. 1989) (“A privy is one so identified

in interest with a party to the former litigation that he or she represents precisely

the same legal right in respect to the subject matter of the case.”).


      For res judicata to apply to U.S. Bank‟s claims regarding the foreclosure
                                         8

rescue deed, U.S. Bank must be a party in privity with Mr. Wilson. Because U.S.

Bank‟s relationship with Mr. Wilson does not constitute any of the traditional

categories of privity—U.S. Bank did not control any of Mr. Wilson‟s prior

litigation over the validity of the foreclosure rescue deed, Mr. Wilson did not

represent U.S. Bank‟s interests in his prior litigation, and U.S. Bank is not Mr.

Wilson‟s successor in interest—the trial court misapplied the doctrine of res

judicata.


       Because U.S. Bank is not in privity with Mr. Wilson, the bankruptcy court

order and Mr. Wilson‟s voluntary dismissal of his predatory lending claims in

federal court do not bar U.S. Bank‟s claims in this case. In granting summary

judgment based on res judicata, the trial court erred in assuming or overlooking

privity.3



       3
         U.S. Bank also argues that res judicata cannot apply because the validity
of the foreclosure rescue deed was not previously litigated. We reverse and
remand based only on the lack of privity, however, as res judicata, unlike collateral
estoppel, does not require actual litigation on the merits to bar a claim. See Modiri
v. 1342 Rest. Grp., Inc., 904 A.2d 391, 395 (D.C. 2006) (holding that the
“foundational requirements of collateral estoppel” include that the precluded issue
was actually litigated); Shin v. Portals Confederation Corp., 728 A.2d at 618 (“The
[res judicata] doctrine bars relitigation not only as to every ground of recovery or
defense actually presented in the action, but also as to every ground which might
have been presented. . . . A dismissal without prejudice does not forever protect a
claim from dismissal in a later proceeding on the ground of res judicata.”) (internal
citations and quotation marks omitted; emphasis in original). While Mr. Wilson,
                                                                         (continued…)
                                          9

      Accordingly, we reverse the portions of the trial court‟s partial grant of

summary judgment in favor of 1905 LLC and Mr. Wilson that rely on res judicata

in determining that that the foreclosure rescue deed is valid. We remand to permit

the court to consider the merits of U.S. Bank‟s claims on count 1 (quiet title), count

2 (equitable lien), and count 4 (equitable mortgage).4


                                                           So ordered.




(…continued)
who voluntarily dismissed his remaining claims regarding the validity of the
foreclosure rescue deed without prejudice in the U.S. District Court, might be
barred from relitigating that issue, U.S. Bank was not in privity with Mr. Wilson in
those proceedings and is therefore not so barred.
      4
         U.S. Bank requests that we issue a declaration that the foreclosure rescue
deed was an equitable mortgage rather than a valid deed, as well as a declaration
that U.S. Bank secures a valid lien against the property in the amount of $262,000.
While we conclude that the trial court‟s grant of summary judgment to the
defendants on counts 1, 2, and 4 was in error, we decline to reach the merits of
these contentions, and leave those questions to be answered by the trial court in a
manner consistent with the reasoning above.
