Civil Action No. 3:03-CV-2928-M.
July 20, 2004
Before the Court is the Motion for Summary Judgment of Defendant Mortgage Electronic Registration Systems, Inc. ("MERS"), filed on June 9, 2004, to which Plaintiff did not respond. In its Motion, Defendant contends that Plaintiff is precluded by the doctrines of res judicata and collateral estoppel from asserting the claims raised in this action. Specifically, Defendant argues that Plaintiff is barred from contesting the legality of the foreclosure of Plaintiff's property because Plaintiff either did or should have asserted her present claims in a prior bankruptcy proceeding. The Court agrees with Defendant. In In re Tonya Desha Adger, Case No. 02-37485-HCA-13, the bankruptcy court entered an order conditioning the automatic stay of actions against Plaintiff's property on Plaintiff making monthly payments on a promissory note held by Washington Mutual Bank, F.A. and secured by a deed of trust encumbering the property at issue in this case. The order provided that if Plaintiff defaulted on her payment obligations, the automatic stay would be lifted and Washington Mutual could pursue foreclosure on the property. Plaintiff defaulted, the automatic stay was lifted, and Washington Mutual foreclosed on the property. Plaintiff was free to contest the legality of a potential foreclosure during the pendency of the bankruptcy proceedings, but chose not to do so. Plaintiff is now precluded from contesting the foreclosure's legality here. Thus, summary judgment is appropriate on all of Plaintiff's claims and the Court GRANTS Defendant's Motion for Summary Judgment. A separate Judgment will be entered.
According to the Complaint, Plaintiff obtained a mortgage loan from United Lending Partners, Ltd., which is not a party to this action. MERS was the beneficiary and nominee for United Lending Partners. After Plaintiff executed a deed of trust to secure payment of the promissory note, the note and deed of trust were transferred to Washington Mutual Bank.