Dismissal of an action for damages for engaging in illegal practices in foreclosure based on res judicata
Dillion v. Select Potfolio Servicing, 09-1469, concerned a challenge to the district court's grant of summary judgment in favor of the defendants in
plaintiff's new suit against the defendants seeking damages claims
under new theories, in determining that plaintiff's claims are
foreclosed by res judicata, following an injunction against defendants for engaging in illegal practices in seeking to foreclose upon plaintiff's home mortgage.
In affirming the judgment, the court held that plaintiff has waived his
argument that he could not have brought his present claims in the first
action because he was then subject to the preliminary settlement in the
class action against defendants. The court held that plaintiff's
argument that his present claims arose after he filed the first action
and thus constitute a separate cause of action is meritless as he has
not raised a material fact in this action that he did not allege in the
prior action. Lastly, the plaintiff has waived his argument that he
could not have raised his avoidance of note claim during his first
action because the defendants had falsely represented during that action
that they owned the note.