              Case: 18-13950     Date Filed: 09/12/2019     Page: 1 of 9


                                                               [DO NOT PUBLISH]

                 THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-13950
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 1:17-cv-05456-AT

CHRISTINE STONE,

                                                                   Plaintiff-Appellant,

                                        versus

JPMORGAN CHASE BANK, N.A.,
OCWEN LOAN SERVICING, LLC,

                                                               Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (September 12, 2019)

Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

      Christine Stone has spent the last fifteen years in legal battles related to the

foreclosure of her home. This action counts as her fifth lawsuit challenging the
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foreclosure. Because Stone has already sued Defendants JPMorgan Chase Bank,

N.A. (Chase) and Ocwen Loan Servicing, LLC (Ocwen) for issues related to her

foreclosure and therefore had ample opportunity to litigate the claims raised in this

action, the court below dismissed this action as barred by res judicata. After

careful review of the record, we affirm.

                                           I.

      In 2004, Stone obtained a mortgage secured by her home in Marietta,

Georgia. When she failed to make timely mortgage payments and went into

default, her loan servicer agreed to help her refinance her mortgage—but then sold

its servicing rights to a new company. The new servicer refused to refinance and

foreclosed on the home. The bank that owned the mortgage purchased the home at

foreclosure in February 2010 and obtained a writ of possession requiring Stone to

vacate the property. But Stone has yet to leave the home because she has been

litigating the foreclosure ever since.

      A few months after the foreclosure, Stone filed her first foreclosure-related

lawsuit against the bank that owns the property, Chase, and a host of other

defendants. She alleged claims for fraud, theft, conversion, breach of contract,

violations of the Real Estate Settlement Procedures Act (RESPA) and RICO—all

resting on the same general premise that Chase and the other defendants misled her

about the modification and refinancing of her mortgage, as well as about the


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foreclosure itself. The U.S. District Court for the Northern District of Georgia

dismissed all the claims for failure to state a claim. Stone appealed, and we

affirmed the dismissal. See Stone v. Bank of New York Mellon, N.A., 609 F. App’x

979, 982 (11th Cir. 2015) (per curiam) (unpublished).

      Stone’s second action alleged claims for wrongful foreclosure, breach of

contract, and intentional infliction of emotional distress against several corporate

entities—but neither Chase nor Ocwen were named as defendants. A state trial

court dismissed the action.

      Stone did not stop—she brought a third action against her newest loan

servicer, Ocwen, and two attorneys. In this action, she alleged that Ocwen had

reinstated her loan and was threatening a second foreclosure. She brought claims

for fraud, unjust enrichment, and conversion. These claims did not fare any better

than the previous ones—a state trial court dismissed them for failure to state a

claim. The court held that all of Stone’s claims related to the foreclosure were

barred by res judicata and/or the statutes of limitations—and warned Stone that

“relitigation of these issues would be futile after the attempts in state and federal

courts.”

      Not heeding that warning, Stone brought a fourth action—this time against

Ocwen and one other defendant. Stone alleged, among other things, that she was

wrongfully denied a mortgage modification, that she was not in default at the time


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the foreclosure took place, and that the foreclosure was not consummated. Stone

alleged an antitrust claim under the Clayton Act and a restraint-of-trade claim

under the Sherman Act. The U.S. District Court for the Northern District of

Georgia dismissed these claims for failure to state a claim.

      That brings us to the current action—Stone’s fifth lawsuit arising out of the

foreclosure. About two months after the district court dismissed the fourth action,

Stone filed this action against Ocwen and Chase. She alleged no new facts and

sued both Ocwen and Chase for wrongful foreclosure, breach of contract, and

intentional infliction of emotional distress. Against Ocwen only, she alleged

violations of RESPA and the Truth in Lending Act. And against Chase only, she

brought an unjust enrichment claim. The district court dismissed the entire action

as barred by res judicata. And to the extent that Stone alleged some claims against

Chase that potentially arose after the dismissal of the first action, the district court

held that those claims failed under Rule 12(b)(6).

                                           II.

      We review a district court’s dismissal of a complaint under Rule 12(b)(6) de

novo, accepting the allegations in the complaint as true and construing them in the

light most favorable to the plaintiff. Lobo v. Celebrity Cruises, Inc., 704 F.3d 882,

887 (11th Cir. 2013).




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                                          III.

      “The doctrine of res judicata, or claim preclusion, bars the parties to an

action from litigating claims that were or could have been litigated in a prior action

between the same parties.” Lobo, 704 F.3d at 892. To prove that res judicata bars

a claim, a movant must show that the following four elements are met: “(1) the

prior decision must have been rendered by a court of competent jurisdiction;

(2) there must have been a final judgment on the merits; (3) both cases must

involve the same parties or their privies; and (4) both cases must involve the same

causes of action.” Id.

      As to the fourth element—whether the cause of action in the previous case is

the same as in the current case—a “cause of action is the same for res judicata

purposes if it arises out of the same nucleus of operative fact, or is based upon the

same factual predicate, as a former action.” Id. at 893 (internal quotation marks

and citation omitted). “It is well settled that res judicata turns primarily on the

commonality of the facts of the prior and subsequent actions, not on the nature of

the remedies sought.” In re Piper Aircraft Corp., 244 F.3d 1289, 1295 (11th Cir.

2001) (emphasis in original). Res judicata therefore “extends not only to the

precise legal theory presented in the previous litigation, but to all legal theories and



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claims arising out of the same ‘operative nucleus of fact.’” Id. (quoting Olmstead

v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984)).

      Before delving into the merits of the district court’s res judicata analysis, we

pause to address Stone’s assertion that the res judicata arguments were not

properly before the district court because Chase and Ocwen raised them at the Rule

12(b)(6) stage—and not as an affirmative defense. While res judicata “is not a

defense under 12(b)” and instead “is an affirmative defense that should be raised

under Rule 8(c),” a “party may raise a res judicata defense by motion rather than

by answer where the defense’s existence can be judged on the face of the

complaint.” Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982).

Because Stone’s complaint in this action alleged the same foreclosure-related facts

as the complaints in the four prior lawsuits, the res judicata defense appeared on

the face of the complaint. The district court therefore did not err in considering the

res judicata arguments at the Rule 12(b) stage.

      Turning to the merits, we first address whether res judicata bars Stone’s

claims against Ocwen. As to the first requirement, the federal district court in

Stone’s fourth action had competent jurisdiction because the claims (for Clayton

Act and Sherman Act violations) raised federal questions. See 28 U.S.C. § 1331.

The second prong of the res judicata analysis is also met—the district court in the

fourth action entered a final judgment on the merits when it dismissed the federal


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claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

See N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990). And as to the third

prong, both cases involved the same parties—in the fourth action, as in this action,

Stone was the plaintiff and Ocwen was a defendant.

      As to the fourth prong, Stone’s claims in the fourth action arose out of the

same “nucleus of operative fact” as the claims brought in this action. In Stone’s

previous action, she alleged that Ocwen and other defendants refused to allow her

to refinance and wrongfully foreclosed on her home. Similarly, in this action

Stone challenges Ocwen’s refusal to engage in refinancing discussions with her, its

decision to refinance, and the way it serviced the loan. This action does not allege

any new facts. So all of Stone’s claims against Ocwen could and should have been

raised in her previous action against Ocwen, and the district court did not err in

determining that res judicata barred those claims.

      Turning to the claims against Chase, we also conclude that the district court

did not err in determining that res judicata bars Stone’s wrongful foreclosure claim

against Chase because Stone had the opportunity to raise this claim in her first

action. As to the first prong of the res judicata analysis, in her first foreclosure-

related action, Stone sued Chase in state court and the defendants properly

removed the action to federal court based on federal-question jurisdiction—the

federal district court therefore properly exercised jurisdiction over the action. The


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second prong is also met because, by dismissing all the claims against Chase for

failure to state a claim, the district court entered a final judgment on the merits.

See Hunt, 891 F.2d at 1560. And the parties were the same—in the first action, as

with this action, Stone was the plaintiff and Chase was the defendant—so the third

prong is met. Fourth, both actions arise out of the same nucleus of operative fact—

the first action challenged the foreclosure proceedings, and in this action Stone

sues Chase for wrongful foreclosure. Res judicata therefore bars Stone’s wrongful

foreclosure claim against Chase.

      We also agree with the district court that, to the extent that Stone’s

remaining claims against Chase—for breach of contract, unjust enrichment, and

intentional infliction of emotional distress—involve events occurring after the

dismissal of the first action such that res judicata does not bar the claims, those

claims still fail under Rule 12(b)(6).

      First, the breach of contract claim pertains to the mortgage note and security

instrument, which Stone alleges Chase presumably held. But Stone attached to her

complaint documents showing that Chase never held the mortgage note or security

instrument. Because Chase is not a party to the relevant contracts, Stone has failed

to state a claim against Chase for breach of contract.

      Second, Stone’s unjust enrichment claim is based on Chase’s alleged

unlawful use of her “foreclosed upon loan; levying and assessments of late fees,


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force placed insurance, interest, taxes, and other charges to the account.” But the

complaint does not allege any facts that plausibly support this allegation. So the

district court did not err in dismissing that claim under Rule 12(b)(6).

      Third, the intentional infliction of emotional distress claim fails because

Stone has not alleged conduct “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Cottrell v. Smith, 788

S.E.2d 772, 780 (Ga. 2016) (citation omitted). The only supposedly outrageous

conduct that Stone points to is Chase’s refusal to sell the property back to her. The

district court did not err in concluding that those allegations do not support a claim

for intentional infliction of emotional distress.

                                          IV.

      For the reasons explained above, the district court’s order dismissing this

action is AFFIRMED.




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