24-586-cv Nicholson v. Bank of N.Y. Mellon

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION SUMMARY ORDER). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand twenty-five.

PRESENT: JOSEPH F. BIANCO, EUNICE C. LEE, ALISON J. NATHAN, Circuit Judges. _____________________________________ HARRIET NICHOLSON, Plaintiff-Appellant, v. 24-586-cv THE BANK OF NEW YORK MELLON, FORMERLY KNOWN AS THE BANK OF NEW YORK TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWMBS, INC., CWMBS REFORMING LOAN REMIC TRUST CERTIFICATES SERIES 005−R2, Defendant-Appellee. _____________________________________

FOR PLAINTIFF-APPELLANT: Harriet Nicholson, pro se, Grand Prairie, Texas.

FOR DEFENDANT-APPELLEE: Brian P. Scibetta, McCalla Raymer Leibert Pierce, LLP, New York, New York.

Appeal from a judgment of the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant Harriet Nicholson, proceeding pro se, appeals from the district court’s judgment dismissing her action on res judicata grounds. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal, to which we refer only as necessary to explain our decision to affirm.

“We review the grant of a motion to dismiss de novo, accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013). We also review de novo a district court’s application of res judicata. See Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017).

Here, a review of the record and relevant case law reveals that the district court properly dismissed Nicholson’s action. 1 We affirm for substantially the reasons stated by the district court in its thorough and well-reasoned August 28, 2023 Order.

Nicholson has filed various motions for judicial notice. The motions are granted as to the nonjudicial foreclosure sale of her home and the substitute trustees’ deed awarded to Nationstar Mortgage LLC, as well as the docket sheet and final judgment in the lawsuit brought in the United States District Court for the Northern District of Texas. The motions for judicial notice are otherwise denied as to her remaining requests. * * * We have considered all of Nicholson’s remaining arguments and motions and find them to be without merit. Accordingly, we GRANT Nicholson’s motion for judicial notice as to the nonjudicial foreclosure sale of her home, Nationstar Mortgage LLC’s substitute trustees’ deed, and the docket sheet and final judgment in the lawsuit brought in the United States District Court for the Northern District of Texas. We DENY the remaining motions and AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court