Susu v. The Bank of New York Mellon
- William Alsup
- 3:20-cv-03563
- U.S. District Court · Northern District of California
- 5
In Susu v. The Bank of New York Mellon, Judge Alsup granted dismissal and dismissed the entire wrongful-foreclosure case with prejudice over claim preclusion and missed court requirements.
Violette Susu and Jeries Sousou lost their wrongful-foreclosure action against The Bank of New York Mellon; the case was dismissed with prejudice, and the bank prevailed on its dismissal motion.
What happened
Violette Susu and Jeries Sousou sued The Bank of New York Mellon over a loan and alleged wrongful foreclosure, repeating claims raised in three earlier lawsuits involving the same property and loan.
The Bank of New York Mellon asked to dismiss the case because the claims had already been resolved or should have been brought earlier, and because the plaintiffs repeatedly failed to follow court procedures. The court also granted the bank’s request to recognize publicly filed property and court records.
Judge William Alsup granted the motion to dismiss and dismissed the entire action with prejudice. The court ruled that claim preclusion barred the repeated claims and that the plaintiffs’ failure to serve properly, respond to the motion, and obey a show-cause order independently supported dismissal.
The detailed version
- Susu v. The Bank of New York Mellon · No. 3:20-cv-03563
- William Alsup
- July 21, 2020
Background
Violette Susu and Jeries Sousou, representing themselves, brought a wrongful-foreclosure action against The Bank of New York Mellon. The dispute concerned a $1,612,500 home loan issued in 2005 and secured by property at 6128 Bay Hill Court in Dublin, California. The opinion states that the plaintiffs eventually defaulted on their mortgage payments and that The Bank of New York Mellon recorded a notice of trustee’s sale.
The plaintiffs had filed three earlier wrongful-foreclosure actions concerning the same loan and property. The first was voluntarily dismissed after the plaintiffs did not meet a deadline to respond to a dismissal motion. The second was dismissed with prejudice for failure to state a claim and failure to prosecute. The third was dismissed for failure to prosecute. The current action asserted wrongful foreclosure, alleged violations of California statutes and the Truth in Lending Act, and intentional infliction of emotional distress.
The Motion to Dismiss
The Bank of New York Mellon moved to dismiss all claims based on res judicata, also called claim preclusion, and failure to prosecute. Claim preclusion prevents a party from pursuing claims arising from the same factual events when a prior case resulted in a final judgment and the parties are the same or share a substantial common interest.
The court found that the current claims arose from the same loan, property, and alleged misconduct as the earlier actions. The Bank of New York Mellon had been a party to all four wrongful-foreclosure actions. The court also found a prior final judgment on the merits because the plaintiffs’ January 2018 action had been dismissed with prejudice for failure to state a claim. The court stated that it had not reached the merits of the other two earlier actions because of the plaintiffs’ neglect.
The court separately found that the plaintiffs failed to prosecute the current case. According to the opinion, they delayed proper service for ten months, attempted to obtain a default despite the lack of service, did not respond to the bank’s dismissal motion, and did not respond to the court’s order directing them to explain why the case should not be dismissed.
Judicial Notice
The court granted the bank’s request for judicial notice. Judicial notice allows a court to accept certain facts or records without requiring formal proof. The records included the deed of trust and other publicly recorded property documents, as well as pleadings and orders from this and related actions.
Disposition
Judge William Alsup granted the defendant’s motion to dismiss. The case was dismissed with prejudice, and the court stated that judgment would be entered separately.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.