Bullock v. Resolution Trust Corp., Civil Action No. 3:94-cv-347WS.

• Decision Date: 09 November 1995
• Docket Number: Civil Action No. 3:94-cv-347WS.
• Citation: 918 F. Supp. 1001
• Parties: Harrison BULLOCK, Plaintiff, v. RESOLUTION TRUST CORPORATION; Jane W. Haddock; Kislak Realty Equities, Inc.; CS First Boston Mortgage Capital Corporation; Mortgage Properties Corporation; and GE Capital Asset Management Corporation, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

918 F. Supp. 1001

Harrison BULLOCK, Plaintiff, v. RESOLUTION TRUST CORPORATION; Jane W. Haddock; Kislak Realty Equities, Inc.; CS First Boston Mortgage Capital Corporation; Mortgage Properties Corporation; and GE Capital Asset Management Corporation, Defendants.

Civil Action No. 3:94-cv-347WS.

United States District Court, S.D. Mississippi, Jackson Division.

November 9, 1995.

COPYRIGHT MATERIAL OMITTED

John M. Mooney, Jr., Jackson, MS, for plaintiff.

Gregory K. Davis, Tylvester O. Goss, Davis, Goss & Williams, Jackson, MS, Lynda Carol Robinson, Robinson Law Firm, P.A., Jackson, MS, for Resolution Trust Corporation.

James E. Lambert, Lambert & Bailey, Jackson, MS, for Jane W. Haddock.

Alan Walter Perry, Forman, Perry, Watkins & Krutz, Jackson, MS, for Kislak Realty Equities, Inc.

W. Wayne Drinkwater, Jr., Jackson, MS, Laura Limerick Gibbes, Lake, Tindall & Thackston, Jackson, MS, for CS First Boston Mtg. Capital Corporation, Mortgage Properties Corporation.

Kathryn H. Hester, Watkins, Ludlam & Stennis, Jackson, MS, for G.E. Capital Asset Management Corporation.

Alan Walter Perry, Forman, Perry, Watkins & Krutz, Jackson, MS, for J.I. Kislak Mortgage Corp.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court are two motions filed pursuant to Rule 56(b),¹ Federal Rules of Civil Procedure: (1) defendant GE Capital Asset Corporation's motion for partial summary judgment on plaintiff's claims based upon the United States Constitution and upon Title 42 U.S.C. § 1983;² and (2) the joint motion for summary judgment on all of plaintiff's claims brought by defendants GE Capital Asset Corporation, CS First Boston Mortgage Capital Corporation, Mortgage Properties Corporation, and Jane W. Haddock.³ The former motion attacks plaintiff's § 1983 claims, arguing that these claims should be dismissed because the facts undergirding this lawsuit are conspicuously absent of any "state action," a necessary prerequisite for any cause of action predicated upon § 1983. Defendants' latter motion seeks dismissal of all of plaintiff's claims premised upon the theories of res judicata and collateral estoppel. Defendants juxtapose a resolved state court action between the parties herein with the instant federal lawsuit and conclude that the two actions meet the identity tests for application of res judicata and/or collateral estoppel and that, accordingly, this lawsuit should be dismissed because plaintiff lost on these same facts and urgings in that state court litigation. Plaintiff Harrison Bullock opposes both motions; however, persuaded by defendants' arguments on the law and undisputed facts, this court grants summary judgment to the defendants on both motions for the reasons which follow.

I. BACKGROUND

On November 16, 1979, William B. Passons and Patricia Ann Passons borrowed Thirty One Thousand Six Hundred Dollars ($31,600.00) from Unifirst Federal Savings and Loan Association (hereafter "Unifirst"). The indebtedness was evidenced by a Note signed by Mr. and Mrs. Passons. The Note was secured by a deed of trust. The property subject to the deed of trust was the Passons' home located at 224 West Lakeview Drive, Clinton, Mississippi.

A Chattel Deed of Trust from William B. Passons and Patricia A. Passons to plaintiff Bullock was recorded in the Chancery Court of Hinds County on January 6, 1988. The Chattel Deed of Trust was secured by the Clinton property. Plaintiff claims an interest in the Clinton property pursuant to the transactions relating to the Chattel Deed of Trust and Warranty Deed.

On August 10, 1989, the Resolution Trust Corporation (hereafter "RTC") was appointed receiver of Unifirst Bank for Savings, F.A., Jackson, Mississippi, ("Old Unifirst") for the purpose of liquidation. On August 10, 1989, a Federal Charter was issued to Unifirst Bank for Savings, A Federal Savings and Loan Association, Jackson, Mississippi, ("New Unifirst"). On August 10, 1989, the RTC was appointed Conservator for New Unifirst. On June 14, 1990, RTC, as Conservator, was replaced by RTC, as Receiver, for New Unifirst.

Plaintiff made payments in 1989 and 1990 on the Passons' mortgage note. The last record of any mortgage payment on the Passons' account occurred on March 19, 1990. A draft in the amount of Three Hundred Forty Nine Dollars ($349.00) was paid to New Unifirst on that date. The Passons' mortgage note was never transferred into plaintiff's name.

J.I. Kislak Mortgage Corporation (hereafter "Kislak") serviced the Passons' mortgage for RTC, as Receiver of New Unifirst. Plaintiff was advised that Kislak was servicing the Passons' mortgage. In 1991, Bullock received a Declarations Page from Transamerica Premier Insurance Company which listed J.I. Kislak Mortgage Service in the Mortgagee Clause.

Plaintiff received a document dated August 29, 1991, stating, "Unifirst Bank for Savings no longer services loans. All loans have been sold or transferred to other institutions...." The document indicates that it is from "Resolution Trust Corporation, Receiver for Unifirst Bank for Savings."

On November 13, 1991, RTC, as Receiver for New Unifirst, assigned the Passons' Note and Deed of Trust to First Boston Mortgage Capital Corporation (hereafter "First Boston"). First Boston assigned the Passons' Note and Deed of Trust to Mortgage Properties Corporation on October 19, 1992. GE Capital Asset Management Corporation (hereafter "GE Capital") serviced the mortgage for Mortgage Properties Corporation.

On December 17, 1992, a Notice of Default and Demand for Payment was sent to plaintiff by GE Capital. The Notice stated that the mortgage note was in arrears in the amount of Eleven Thousand Seven Hundred Seventy Four Dollars and Seventy Three Cents ($11,774.73). On January 11, 1993, plaintiff wrote GE Capital a letter in response to the December 17, 1992, letter. On March 1, 1993, GE Capital responded to plaintiff, providing him with the requested information. Plaintiff wrote GE Capital a letter on March 8, 1993. This letter mentions a "public auction of said property."

On October 19, 1992, Mortgage Properties Corporation substituted John C. Underwood, Jr., as Trustee under the Deed of Trust on the Clinton property. On February 10, 1993, Mr. Underwood sent a letter to plaintiff, via certified mail, with a copy of the Substituted Trustee's Notice of Sale. The letter states that the property is scheduled to sell on March 15, 1993. On March 15, 1993, defendant Jane W. Haddock, the highest bidder, purchased the property at foreclosure and acquired title to the real property in question by virtue of a Substituted Trustee's Deed recorded in the Office of the Chancery Clerk of the First Judicial District of Hinds County, Mississippi, Deed Book 4106 and Page 514. Upon acquiring title and taking possession of the property, Haddock succeeded to the interests of First Boston and Mortgage Properties.

Holding a second lien on the property, Bullock claims that as a result of not having received notice of the foreclosure he has been damaged in both his personal and business capacities. Plaintiff Harrison Bullock prior to the time of the foreclosure utilized the property as a storage facility.

Immediately following the foreclosure, on March 26, 1993, Bullock filed suit in state court against Haddock challenging the correctness of the foreclosure and seeking an injunction, possession of the property, and damages. After Haddock answered and after the state judge had heard evidence on the matter, the state judge on August 23, 1995 (Memorandum Opinion and Order), and September 26, 1995 (Final Judgment), found against Bullock. Meanwhile, back on June 13, 1994, Bullock had filed this federal lawsuit against Haddock, adding the defendants GE Capital Asset Corporation, CS First Boston Mortgage Capital Corporation, and Mortgage Properties Corporation. Bullock brings the instant lawsuit pursuant to Title 28 U.S.C. § 1331⁴ and § 1343(a)(3).⁵

II. FINDINGS OF FACT

A. The State Lawsuit

On March 15, 1993, defendant GE Capital foreclosed on the deed of trust secured by the property at 224 West Lakeview Drive, Clinton, Mississippi. Plaintiff Bullock claims an interest in that property as a junior lienholder. Defendant Jane W. Haddock, the highest bidder at the foreclosure sale, took possession of the property, changed the locks, and moved the personal property in the house to a storage facility.

Harrison Bullock returned to the property a week later and, finding the locks changed and the personal property gone, filed a complaint against Haddock in the Hinds County, Mississippi, Chancery Court (Civil Action No. 151,694) and obtained a temporary restraining order without notice against Haddock. In his Chancery Court lawsuit filed March 26, 1993, Bullock alleged: that defendant Haddock was not entitled to possession of the premises; that Bullock had been deprived of the premises and his personal property in the premises as a result of the foreclosure; that Haddock had removed and converted personal property and business records and inventory valued in excess of $100,000 from the premises; that defendant Haddock has refused to return or divulge the location of items that had been removed from the premises; that Bullock has been unable to operate his business as a result of the foreclosure; that Bullock's business reputation and business relationships have been damaged as a result of the foreclosure; that as a result of these injuries, Bullock is entitled to actual and compensatory damages of $250,000, punitive damages, and attorney fees; that Bullock is entitled to temporary and permanent injunctive relief enjoining Haddock from coming onto the premises and enjoining her from exercising any right of ownership over the premises; and that Bullock is entitled to possession of the premises.

In her answer to the chancery complaint, Haddock asserted that the property was hers because she had been the highest bidder at the foreclosure sale, that the...