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Sealey v. Branch Banking and Trust Co.

United States District Court, M.D. Alabama, Northern Division

February 21, 2019

MELVIN LEWIS SEALEY, Plaintiff/Counter-Defendant,
v.
BRANCH BANKING AND TRUST COMPANY Defendant/Counter-claimant.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This is now the fourth lawsuit filed by pro se plaintiff Melvin Lewis Sealey (“Sealey”) against defendant Branch Banking and Trust Company (“BB&T” or “the Bank”) arising from the Bank's foreclosure on approximately 38 acres of farm land in Crenshaw County, Alabama (the “property”). Pending before the court is BB&T's motion for summary judgment asserting that Sealey's claims are barred by res judicata.[1](Doc. # 12). In Sealey v. BB&T, 693 Fed.Appx. 830, 833-834 (11th Cir. 2017) (“Sealey III”), the Eleventh Circuit affirmed dismissal of Sealey's third lawsuit on claim preclusion, or res judicata grounds, and this fourth lawsuit deserves the same fate. Accordingly, for the reasons stated below, the undersigned Magistrate Judge RECOMMENDS that BB&T's motion be granted and that this action be DISMISSED WITH PREJUDICE.

         II. FACTUAL & PROCEDURAL BACKGROUND

         In April 2004 Sealey, an Ohio resident, borrowed $89, 400 from Colonial Bank (“Colonial”) secured by a mortgage on approximately 38 acres of farm land on Highway 331 in Brantley, Alabama. Ex. K, BB&T v. Sealey, No. 24-CV-2013-900064.00 (Cir. Ct. Crenshaw County, Ala) complaint Exs. A&B, loan agreement & mortgage.[2]Colonial was declared insolvent in August 2009, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. Ex. B, certificate of appointment. BB&T purchased Colonial's assets from the FDIC and received a blanket assignment of Colonial's security instruments and loan documents. Ex. D, assignment of security instruments and other loan documents. The FDIC also executed an individual allonge assigning Sealey's mortgage to BB&T. Exhibit E, allonge. Sealey had stopped paying on the loan in April 2009, and in July 2104, BB&T foreclosed on the property. Exhibit K, BB&T v. Sealey, No. 24-CV-2013-900064.00 (Cir. Ct. Crenshaw County, Ala) complaint Exs. N foreclosure notice & P foreclosure deed.

         On September 14, 2014, Sealey filed suit against BB&T, its senior vice president, chief executive officer, and their counsel in the Circuit Court of Crenshaw County, Alabama. Sealey v. Stidham, et al., Civil Action No. CV-14-16 (Cir. Ct. Crenshaw, County, Ala. 2014)(“Sealey I”).[3] Sealey sought declaratory and injunctive relief invalidating the foreclosure on the apparent theory that BB&T had no legally enforceable interest in the loan originated by Colonial. BB&T removed the action to this court and moved to dismiss. Sealey I, Civil Action Number 2:14-cv-01036 (M.D. Ala. 2014) (Docs. ## 1, 2). The magistrate judge issued a recommendation that BB&T's motion be granted (Doc. # 30), and in response Sealey filed a notice of voluntary dismissal. Sealey I, (Docs. ## 34 & 36).

         On October 28, 2014, while Sealy I was still pending, Sealey filed a second suit in this court against BB&T, its officers, and counsel. Sealey v. Stidman, et al., No. 2:14-cv-01117-MHT-WC (M.D. Ala. 2014) (“Sealey II”). Again, Sealey challenged BB&T's authority to acquire his Colonial loan. Sealey II, Complaint (Doc # 1) at 1-2. He demanded free and clear title to the property and $4.4 million in damages. Id. at 19. Defendants moved to dismiss this second lawsuit (Doc. # 9), the magistrate judge issued a recommendation that the motion be granted (Doc. # 26), and Sealey again sought to avoid the effect of the recommendation by filing a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41 (a)(1)(A)(i). (Doc. # 29).

         On October 14, 2015, Sealey returned to State court and filed a third lawsuit against BB&T seeking an order voiding the foreclosure of the property as well as compensatory and punitive damages. Sealy v. BB&T, Civil Action No. CV-2015-11 (Cir. Ct. Crenshaw County, Ala.) (“Sealy III”). BB&T removed the case to this court and moved to dismiss on res judicata grounds, arguing that Sealey's second voluntary dismissal operated as an adjudication on the merits under Rule 41(a)(1)(B)'s two-dismissal rule. Sealy III, No. 2:15-cv-00837-WKW-TFM (M.D. Ala. 2015) (Doc # 6) at 1-6. The magistrate judge issued a recommendation that BB&T's motion be granted, and the district court adopted it and dismissed the case with prejudice. Sealey III (Docs. ## 25, 31). Sealey appealed to the Eleventh Circuit, and the Court of Appeals affirmed holding that “the district court correctly concluded that claim preclusion applied to bar Sealey's current suit against BB&T.” Sealey III, 693 Fed.Appx. at 833.

         Undeterred, Sealey filed this fourth lawsuit against BB&T seeking to void the foreclosure. Sealey IV, Compl. (Doc. # 1) pp. 4-8 ¶¶ 8-16.

         III. LEGAL STANDARD

         Summary Judgment

         A party may move for summary judgment at any time. Fed.R.Civ.P. 56(b). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The legal elements of the claim dictate which facts are material and which are irrelevant. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The party opposing summary judgment may not rest upon the mere allegations in the complaint but must come forward with evidence that contradicts the moving party's evidence and creates a genuine issue for trial. Id.

         The Eleventh Circuit instructs that although “pro se complaints are entitled to a liberal interpretation by the courts, we hold that a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment.” Brown v. Crawford, 996 F.2d 667, 670 (11th Cir. 1990). Moreover, the leniency toward pro se litigants does not permit courts to act as “de facto counsel.” Campbell v. Air Jamaica, Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014); GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

         IV. ...


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