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Marie Miller v. Nationstar Mortgage 12-CV-180-SM 8/14/12
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marie Luise Miller,
v. Case No. 12-cv-180-SM
Opinion No. 2012 DNH 130
Nationstar Mortgage, LLC;
Andrew Harmon; Joshua D. Shakun;
and George A. Karambelas,
O R D E R
This action arises out of a dispute between pro se plaintiff, Marie
Luise Miller, and her (former) mortgage lender, Nationstar Mortgage. In
her original complaint, Miller "petition[ed] this court for review of the
N.H. Supreme Court order, dated February 10, 2011, dismissing Miller's
appeal, and the lawfulness of a Writ of Possession, dated April 16, 2012."
Petition for Review (document no. 1) at 1. Subsequently, Miller amended
her complaint, to add three individual defendants and to advance claims
that defendants violated several of her federally protected constitutional
rights, committed a fraud upon the state court(s), were unjustly enriched
at her expense, and conspired among themselves to unlawfully deprive her
of her property. Defendants move to dismiss plaintiff's claims and, for
the reasons discussed, that motion is granted.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the court must "accept as true all well-pleaded facts set out in the
complaint and indulge all reasonable inferences in favor of the pleader."
S.E.C. v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain "a short and plain statement of the claim
showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2),
it must "contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.
S. 662, 678 (2009) (citation and internal punctuation omitted).
Here, in support of their motion to dismiss, defendants rely upon
written decisions issued by the New Hampshire Superior Court (Strafford
County) and the New Hampshire Supreme Court in prior litigation between
Miller and Nationstar. Although a court must typically decide a motion to
dismiss exclusively upon the allegations set forth in the complaint (and
any documents attached to that complaint) or convert the motion into one
for summary judgment, see Fed. R. Civ. P. 12(b), there is an exception to
that general rule:
[C]ourts have made narrow exceptions for documents the authenticity
of which are not disputed by the parties; for official public records;
for documents central to plaintiffs' claim; or for documents
sufficiently referred to in the complaint.
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations omitted). See
also Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 321 (1st
Cir. 2008); Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st
Cir. 1998). Since Miller does not dispute the authenticity of the
judicial opinions upon which defendants rely, the court may properly
consider those documents without converting defendants' motion into one
for summary judgment.
Based upon the allegations contained in the amended complaint, as
well as the facts set forth in the two written decisions issued by the
state courts, the pertinent background is as follows. Nationstar held a
mortgage deed to Miller's home, located in Farmington, New Hampshire.
That mortgage and the associated promissory note (in the principal amount
of $100,300) were duly recorded in the Strafford County Registry of Deeds.
In September of 2007, Miller defaulted on the loan. In 2008, after
efforts to restructure her loan failed, Nationstar foreclosed on Miller's
property. At the foreclosure sale, it purchased the property for
approximately $107,300. Subsequently, Nationstar brought an action in
Strafford County Superior Court seeking to evict Miller from the property.
In response, Miller filed counterclaims against Nationstar, seeking $1,000,
000 in damages
and a judicial declaration that she retained title to the property.
Nationstar moved for summary judgment, asserting that it had complied
with New Hampshire's statutory foreclosure process and was, therefore,
entitled to a declaration that it held title to the subject property, as
well as an order compelling Miller to vacate the premises. The court
agreed and granted Nationstar's motion. As to Miller's counterclaims
against Nationstar, the court concluded that:
[E]ven construing Ms. Miller's pleadings liberally and assuming the
facts she asserts to be true, she has failed to state a claim upon
which relief can be granted. Her pleadings do not sufficiently state
the factual or legal bases for her counterclaims to put Nationstar
and the court on notice of them. Additionally, when given an
opportunity during the October 23, 2009 hearing to explain the bases
for her claims, Ms. Miller was unable to state a valid claim of any
Exhibit A to Defendant's Memorandum (document no. 14-1), Nationstar
Mortgage, LLC v. Marie Miller, Case no. 219-2008-EA- 206 (N.H. Sup. Ct.
November 23, 2009) ("Nationstar I").
Miller appealed to the New Hampshire Supreme Court, which affirmed
the superior court's decision in all respects.
[W]e cannot conclude that the trial court erred by granting the
plaintiff summary judgment as to its claim, and dismissing the
With respect to the remaining arguments in the defendant's brief,
including her arguments that the trial court lacked jurisdiction and
violated her constitutional rights, the arguments are either
unsupported by the record or are without merit, warranting no further
Exhibit B to Defendant's memorandum (document no. 14-2), Nationstar
Mortgage, LLC v. Marie Miller, Case no. 2010-113 (N.H. February 10, 2011) ("
Nationstar II") (citations omitted). Accordingly, the state courts have
held that: (1) Nationstar complied with New Hampshire's statutory
foreclosure process and now holds lawful title to the subject property; (2)
Miller has been lawfully divested of any interest in that property; and (3)
Miller's jurisdictional and constitutional claims (at least as to
Nationstar) are without merit.
Subsequently, Miller instituted the instant proceeding against
Nationstar, as well as three attorneys who apparently represented
Nationstar during the course of its negotiations with Miller and,
subsequently, the foreclosure of its mortgage deed to her property.
Defendants are entitled to the dismissal of Miller's complaint for
several reasons. First, to the extent Miller seeks "review of the N.H.
Supreme Court order, dated February 10, 2011," as alleged in her original
complaint (document no. 1), the Rooker-Feldman doctrine plainly precludes
such federal review of state court decisions. As this court has
The combined effect of the Rooker-Feldman doctrine and the res
judicata doctrine precludes this court's consideration of Edwards's
dubious legal claims. It is well-established under the Rooker-
Feldman doctrine that the inferior federal courts are without
jurisdiction to review state court decisions and, as a corollary,
lack jurisdiction to consider claims that are inextricably
intertwined with review of those proceedings. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); Wang v.
New Hampshire Bd. of Registration in Medicine, 55 F.3d 698, 703 (1st
Cir. 1995). Federal claims are inextricably intertwined with a state
proceeding (even if precisely the same claims were not raised
previously in state litigation) if the party had an opportunity to
raise those claims in state court, and if resolution of the claims in
federal court would effectively provide a form of federal appellate
review of the state court's decision. See Pennzoil Co. v. Texaco,
481 U.S. 1, 25 (1987) (Marshall, J., concurring); Moccio, 95 F.3d at
199-200; Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993), cert.
denied, 510 U.S. 1046 (1994); Lancellotti v. Fay, 909 F.2d 15, 17 (
1st Cir. 1990). Thus, the Rooker- Feldman doctrine precludes a party
who loses in state court from dressing his claims in federal clothing
in order to gain federal review of the disappointing state result.
Ritter, 992 F.2d at 754.
Edwards v. City of Manchester, Case no. 96-cv-517-SM, slip op. at 3-4 (D.N.
H. Dec. 17, 1996). Second, with regard to her claims
that defendants deprived her of various federally protected
constitutional rights (counts one, two, four, and five), there is no
plausible suggestion that defendants were ever acting as agents of the
State or under color of state law - an essential element to any such claim
. See generally 42 U.S.C. 1983.
Finally, Miller's claims against Nationstar and its attorneys are
barred by the doctrines of res judicata and collateral estoppel. "The
doctrine of res judicata precludes the litigation in a later case of
matters actually litigated, and matters that could have been litigated, in
an earlier action between the same parties for the same cause of action."
In re Alfred P., 126 N.H. 628, 629 (1985) (citations omitted). "In order
for res judicata to apply to a finding or ruling, there must be 'a final
judgment by a court of competent jurisdiction [that] is conclusive upon
the parties in a subsequent litigation involving the same cause of action.'
" In re Donovan, 137 N.H. 78, 81 (1993) (quoting Marston v. United States
Fidelity & Guar. Co., 135 N.H. 706, 710 (1992)). "The term 'cause of
action' means the right to recover, regardless of the theory of recovery."
Eastern Marine Constr. Corp. v. First Southern Leasing, 129 N.H. 270, 274 (
1987) (citations omitted).
In light of the decisions by both the New Hampshire Superior Court
and the Supreme Court, Miller's claims against Nationstar are plainly
barred by both the Rooker-Feldman and res judicata doctrines. See
generally, Dillon v. Select Portfolio Servicing, Inc., 2009 WL 242912, DNH
12 (D.N.H. 2009) (discussing the doctrine of res judicata in a
substantially similar case that involved state court litigation by a
mortgagor to enjoin a foreclosure, followed by federal litigation against
the mortgagee), aff'd 630 F.3d 75 (1st Cir. 2011). Any state or federal
claims that Miller now advances against Nationstar could have, and should
have, been raised and litigated in the earlier state court proceedings.
The three individually named attorneys were not, however, parties to
the underlying state court litigation between Miller and Nationstar.
Consequently, the preclusive effect of that litigation - at least as to
them - is somewhat more complicated. Although they say that they, too,
are shielded from Miller's current claims by principles of res judicata (
because they say they were "in privity" with Nationstar), it is probably
more appropriate to focus on the application of collateral estoppel.
Collateral estoppel is a related doctrine which "precludes the
relitigation by a party in a later action of any matter actually litigated
in a prior action in which he or someone in privity
with him was a party." In re Alfred P., 126 N.H. at 629. "While
collateral estoppel does not require an identity of the earlier and later
causes of action, it precludes the relitigation only of issues actually
raised and determined in the earlier litigation." Morgenroth & Assocs. v.
State, 126 N.H. 266, 270 (1985).
Three conditions must be met before collateral estoppel can arise: "[
T]he issue subject to estoppel must be identical in each action, the first
action must have resolved the issue finally on the merits, and the party
to be estopped must have appeared as a party in the first action, or have
been in privity with someone who did so. These conditions must be
understood, in turn, as particular elements of the more general
requirement, that a party against whom estoppel is pleaded must have had a
full and fair prior opportunity to litigate the issue or fact in question
." Daigle v. City of Portsmouth, 129 N.H. 561, 570 (1987).
Here, there is no doubt that each of the three essential elements of
collateral estoppel is present. Miller was a party to the underlying
state court action. That action was resolved on the merits - fully and
finally - when the New Hampshire Supreme Court issued its decision
affirming the superior court's order granting summary judgment to
Nationstar and dismissing Miller's counterclaims (Miller did not appeal
that order to the
United State Supreme Court). And, finally, the central, dispositive
issue in the state court litigation and this case is the same: whether
Nationstar and its agents conducted the foreclosure sale of Miller's
property in accordance with state law. That issue was resolved in favor
of Nationstar, and against Miller:
Nationstar now moves for summary judgment, arguing that it complied
with the foreclosure process as laid out in RSA 479:26, and that it
is therefore entitled to a judgment declaring that title to the
property is vested in Nationstar. . . . As to the procedure
surrounding the foreclosure sale, Nationstar has established to the
court's satisfaction that there is no genuine issue of material fact
and it is entitled to a judgment as a matter of law. . . . .
Therefore, the court GRANTS Nationstar's motion for summary judgment.
Nationstar I, at 2. Consequently, Miller cannot relitigate that issue (or
derivative issues) in this forum.
Miller had a full and fair opportunity in the state court system to
litigate her various claims concerning the legality and constitutionality
of the foreclosure sale of her home by Nationstar and its agents. Those
issue were resolved against her. Consequently, she cannot relitigate them
in this forum, nor does this court have jurisdiction to "review" the
decisions of the state courts. Defendants' motion to dismiss (document no.
13) is, therefore granted. Plaintiff's motion for entry of
default based upon defendants' alleged failure to answer her complaint (
document no. 15) is denied. In lieu of an answer, defendants filed a
motion to dismiss, as is permitted by the federal rules. See Fed. R. Civ.
P. 12.[ 1 Defendant George Karambelas filed an answer before
defendants submitted their joint motion to dismiss. Accordingly, as to
him, the court has treated that motion as one for judgment on the
pleadings. See Fed. R. Civ. P. 12(c). ]1
The Clerk of Court shall enter judgment in accordance with this order
and close the case.
Steven J. McAuliffe
United States District Judge
August 14, 2012
cc: Kurt R. McHugh, Esq.
George A. Karambelas, Esq.
Marie L. Miller, pro se