     17-1280-cv
     Harris v. BNC Mortg., Inc.


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
     CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 12th day of June , two thousand eighteen.
 4
 5   PRESENT:
 6              PIERRE N. LEVAL,
 7              ROBERT D. SACK,
 8              CHRISTOPHER F. DRONEY,
 9                    Circuit Judges.
10   _____________________________________
11
12   SYMONOUS-GRETA HARRIS, EX RELATIONE
13   AND AUTHORIZED REPRESENTATIVE FOR:
14   SYMONOUS HARRIS, ET AL.,
15
16                                Plaintiff-Appellant,
17
18                      v.                                                 17-1280-cv
19
20   BNC MORTGAGE, INC., WELLS FARGO BANK,
21   N.A., DBA AMERICA'S SERVICING COMPANY,
22   N.A., DBA AMERICA'S SERVICING COMPANY,
23   LEHMAN BROTHERS HOLDINGS INC., U.S. BANK
24   NATIONAL ASSOCIATION, AURORA LOAN
25   SERVICES, LLC, DEUTSCHE BANK NATIONAL
26   TRUST COMPANY, STRUCTURED ASSET
27   INVESTMENT LOAN TRUST, STRUCTURED ASSET
28   SECURITIES CORPORATION, JOHN AND JANE
29   DOES, ALL OTHER PARTIES OF INTEREST 150,
30   ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL
 1   OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR
 2   INTEREST IN THE PROPERTY DESCRIBED IN THE
 3   COMPLAINT ADVERSE TO PLAINTIFFS TITLE OR
 4   ANY CLOUD ON PLAINTIFF'S TITLE THERETO,
 5
 6                        Defendants-Appellees.
 7
 8   _____________________________________
 9
10
11   FOR PLAINTIFF-APPELLANT:                          Symonous-Greta Harris, pro se,
12                                                     Brooklyn, NY.
13
14   FOR DEFENDANTS-APPELLEES:                         Laurence P. Chirch, Sandelands Eyet
15                                                     LLP, New York, NY (for BNC
16                                                     Mortgage, Inc., Lehman Brothers
17                                                     Holdings Inc., Aurora Loan Services,
18                                                     LLC, Structured Asset Securities
19                                                     Corporation).
20
21   `                                                 Chava Brandriss, Lisa J. Fried, Cameron
22                                                     E. Grant, Hogan Lovells US LLP, New
23                                                     York, NY (for Wells Fargo Bank, N.A.,
24                                                     DBA America's Servicing Company,
25                                                     N.A., DBA America's Servicing
26                                                     Company, U.S. Bank National
27                                                     Association).
28
29                                                     Deutsche Bank National Trust Company
30                                                     did not appear.
31
32          Appeal from a March 28, 2017, judgment of the United States District Court for the
33   Eastern District of New York (Brodie, J.).

34       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
35   AND DECREED that the judgment of the district court is AFFIRMED.

36          Appellant Symonous-Greta Harris, pro se, sued several financial institutions for
37   violations of the Truth in Lending Act, the Equal Credit Opportunity Act, the Real Estate
38   Settlement Procedures Act, and state law, alleging that the defendants fraudulently obtained
39   a default judgment against her in a 2009 foreclosure action in state court because they lacked
40   a valid mortgage note. The district court dismissed her complaint as barred by res judicata
41   because Harris could have raised these claims as a defense or counterclaim in the state
 1   foreclosure action. We assume the parties' familiarity with the underlying facts, the
 2   procedural history of the case, and the issues on appeal.

 3            "We review the grant of a motion to dismiss de novo, accepting as true all factual
 4   claims in the complaint and drawing all reasonable inferences in the plaintiff's favor." Fink
 5   v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). We also review de novo a
 6   district court's application of res judicata. Brown Media Corp. v. K&L Gates, LLP, 854
 7   F.3d 150, 157 (2d Cir. 2017).

 8           Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply
 9   New York res judicata law to New York state court judgments. See Hoblock v. Albany
10   Cnty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005). In New York, "the doctrine of res
11   judicata gives binding effect to the judgment of a court of competent jurisdiction and
12   prevents the parties to an action, and those in privity with them, from subsequently
13   relitigating any questions that were necessarily decided therein." Watts v. Swiss Bank
14   Corp., 27 N.Y.2d 270, 277 (1970) (internal quotation marks omitted). "[I]f claims arise
15   out of the same factual grouping they are deemed to be part of the same cause of action and
16   the later claim will be barred without regard to whether it is based upon different legal
17   theories or seeks different or additional relief." Davidson v. Capuano, 792 F.2d 275, 278
18   (2d Cir. 1986) (internal quotation marks omitted).

19          Res judicata bars Harris's claim in this later action. The foreclosure default
20   judgment is a final judgment on the merits. Harris argues that the default judgment in the
21   foreclosure action cannot bar her claims because none of her claims were fully litigated on
22   the merits. But actual litigation is not required for res judicata; it need only be shown that
23   a party had the opportunity to litigate the claims. See EDP Med. Comput. Sys., Inc. v.
24   United States, 480 F.3d 621, 626 (2d Cir. 2007) ("Res judicata does not require the
25   precluded claim to actually have been litigated . . . . That is why it has long been the law
26   that default judgments can support res judicata as surely as judgments on the merits.");
27   Henry Modell & Co. v. Minister, Elders & Deacons of Reformed Protestant Dutch Church
28   of New York, 68 N.Y.2d 456, 461 (1986) (noting that "a default judgment awarding
29   possession to the landlord has been held to preclude litigation of subsidiary issues necessary
30   to establish the tenant's subsequent claim for separate equitable relief").

31           Harris argues that she lacked the opportunity to litigate because she was the
32   defendant and had "no obligation to litigate" in the foreclosure action. Harris is correct that
33   New York, unlike the federal courts, does not have a compulsory counterclaim rule,
34   requiring a defendant to raise any counterclaim it has that arises out of the facts of the
35   plaintiff's claims. Henry Modell & Co., 68 N.Y.2d at 461 (discussing New York rule); Fed.
36   R. Civ. P. 13(a) (federal compulsory counterclaim rule). But "a party is not free to remain

                                                   3
 1   silent in an action in which [s]he is the defendant and then bring a second action seeking
 2   relief inconsistent with the judgment in the first action by asserting what is simply a new
 3   legal theory." Henry Modell & Co., 68 N.Y.2d at 461. Harris seeks to obtain declaratory
 4   relief that the defendants did not have a valid mortgage note and fraudulently obtained
 5   mortgage documents, and therefore were not entitled to recover any property or money from
 6   her related to the mortgage. This relief would be inconsistent with the judgment in the
 7   foreclosure action.

 8           Further, both the foreclosure action and the instant suit involve the same cause of
 9   action. Both cases involve allegations that Harris took out a mortgage with BNC Mortgage
10   Inc. and that the mortgage was assigned to U.S. Bank National Association ("U.S. Bank"),
11   as trustee of the Structured Assert Investment Loans Trust ("SAILT"). Harris argues that
12   the foreclosure action is not the "same cause of action" because the legal causes of action
13   were not same in the two suits, relying primarily on Manning v. City of Auburn, 953 F.2d
14   1355 (11th Cir. 1992). But Manning is inapplicable because it applies the "primary right
15   and duty" test for res judicata, which is the test applicable in Eleventh Circuit, but not in
16   New York. Manning, 953 F.2d at 1358-59. In contrast, New York applies the
17   transactional approach, which does not consider whether the infringement of rights at issue
18   is the same as that asserted in an earlier litigation, but rather examines the "factual grouping"
19   to determine whether the claims are based on the same set of facts. See Davidson, 792 F.2d
20   at 278; see also Smith v. Russel Sage Coll., 54 N.Y.2d 185, 192-93 (1981). Even though
21   the facts in Harris's federal complaint are a "different shading" of the facts alleged in the
22   foreclosure complaint, they are a part of the same transaction. Both the complaint and the
23   foreclosure action involved allegations relating to the origin of Harris's mortgage and its
24   subsequent assignment. See Smith, 54 N.Y.2d at 192-93 (holding that whether a factual
25   grouping constitutes a transaction or series of transactions depends on how the facts are
26   related in time, space, origin, or motivation, whether they form a convenient trial unit, and
27   whether . . . their treatment as a unit conforms to the parties' expectations or business
28   understanding or usage" (internal quotation marks omitted)).

29           Finally, eight of the nine parties in the instant suit are the same parties or their privies
30   from the foreclosure action. A party in privity "includes those who are successors to a
31   property interest, those who control an action although not formal parties to it, those whose
32   interests are represented by a party to the action, and possibly coparties to a prior action."
33   Chase Manhattan Bank, N.A. v. Celotext Corp., 56 F.3d 343, 346 (2d Cir. 1995) (quoting
34   Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277 (1970)). There are nine named parties in
35   this action: Harris, U.S. Bank, SAILT, Wells Fargo Bank, Lehman Brothers Holdings Inc.,
36   Aurora Loan Services, BNC Mortgage Inc., Structured Asset Securities Corporation
37   ("SASC"), and Deutsche Bank National Trust Company. U.S. Bank, Harris, and SAILT
38   were named parties in the prior action. Five of the other parties—Wells Fargo, Lehman

                                                     4
 1   Brothers, Aurora, BNC Mortgage, and SASC—are in privity with U.S. Bank and SAILT
 2   through various contracts or arrangements. Because there was a judgment on the merits in
 3   the foreclosure action, which was the same cause of action as the instant case, the claims
 4   against these defendants are precluded.

 5          The remaining defendant is Deutsche Bank. Although Deutsche Bank did not enter
 6   an appearance, the district court dismissed the claims against it based on res judicata. But
 7   the record does not reflect what relationship, if any, Deutsche Bank has to any of the other
 8   parties or to Harris's mortgage. The district court therefore erred by assuming that
 9   Deutsche Bank was in privity to U.S. Bank or SAILT and that the claims against it were
10   precluded.

11           However, we may affirm the district court's dismissal of the complaint on an
12   alternative ground. See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993) ("We may
13   affirm. . . on any basis for which there is a record sufficient to permit conclusions of law,
14   including grounds upon which the district court did not rely."). Harris's complaint fails to
15   state a claim against Deutsche Bank. A complaint must plead "enough facts to state a claim
16   to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
17   (2007), and "allow[] the court to draw the reasonable inference that the defendant is liable
18   for the misconduct alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Harris alleged
19   no facts suggesting that Deutsche Bank violated any state or federal law and her conclusory
20   allegations that the defendants collectively violated these laws are insufficient to state a
21   claim. See Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) ("[C]onclusory
22   allegations or legal conclusions masquerading as factual conclusions will not suffice to
23   [defeat] a motion to dismiss." (second alteration in original)).

24          Although a pro se plaintiff should be afforded leave to amend following a Federal
25   Rule of Civil Procedure 12(b)(6) dismissal "when a liberal reading of the complaint gives
26   any indication that a valid claim might be stated," Cuoco v. Moritsugu, 222 F.3d 99, 112
27   (2d Cir. 2000), no such leave was required here because it would be futile. The complaint
28   gives no indication that Harris could assert a valid claim against Deutsche Bank because the
29   allegations concern only BNC Mortgage and its assignment of the note to U.S. Bank and
30   SAILT. Deutsche Bank also does not appear in any mortgage documents. There is
31   nothing to suggest, even with a liberal reading of the complaint, that the "plaintiff has a
32   claim that she has inadequately or inartfully pleaded and that she should therefore be given
33   a chance to reframe." Id.

34

35


                                                  5
1          We have considered all of Harris's remaining arguments and find them to be without
2   merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

3                                           FOR THE COURT:
4                                           Catherine O'Hagan Wolfe, Clerk of Court




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