United States District Court, E.D. Arkansas, Western Division
PHILLIP T. THOMPSON PLAINTIFF
BANK OF NEW YORK MELLON TRUST COMPANY, ET AL. DEFENDANTS
OPINION AND ORDER
Kristine G. Baker United States District Judge.
the Court is defendant/counter-plaintiff Bank of New York
Mellon Trust Company's (“BONY”) motion for
partial summary judgment on damages (Dkt. No. 238). Plaintiff
Phillip T. Thompson filed a response opposing BONY's
motion for partial summary judgment (Dkt. No. 246). BONY
filed a reply (Dkt. No. 249). Mr. Thompson then filed a
motion for leave to file a motion to strike BONY's reply,
in which he alleges that BONY's reply is untimely filed
(Dkt. No. 250). Mr. Thompson subsequently filed a notice
withdrawing his motion for leave (Dkt. No. 251). The Court
grants BONY's motion for partial summary judgment (Dkt
No. 238) and denies as moot Mr. Thompson's motion for
leave to file motion to strike untimely reply (Dkt. Nos. 250,
Court previously granted BONY's motion for summary
judgment as to liability on its counterclaim (Dkt. No. 235).
The factual and procedural history of this case is set out in
detail in that Order. By granting BONY's motion for
summary judgment, the Court determined that Mr. Thompson is
liable to BONY for the balance on a Note and Mortgage
securing real property located in Pulaski County, Arkansas.
The Court, however, denied BONY's motion for summary
judgment on damages and determined that a genuine issue of
material fact remained with regard to the amount owed by Mr.
Thompson. The Court acknowledged that the issue of fact was
due, in part, to the passage of time since BONY's first
motion was filed (Dkt. Nos. 171, 235). Subsequently, BONY
filed a motion for summary judgment concerning damages (Dkt.
judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Hartnagel v. Norman, 953 F.2d 394,
395 (8th Cir. 1992) (citing Fed. R. Civ. Proc. 56(c)). An
issue of material fact is genuine if it has a real basis in
the record. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). A genuine
issue of fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Procedurally, the movant has the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of the record
which show a lack of a genuine issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant is not
required by the rules to support its motion with affidavits
or other similar materials negating the opponent's claim.
Id. “When the moving party has carried its
burden under Rule 56(c), its opponent must do more than
simply show there is some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586.
“Where the record as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.'” Id. at
587. “[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex, 477
U.S. at 322.
motion, BONY contends that Mr. Thompson owes damages for the
balance of the loan (Dkt. No. 239, at 2). BONY contends that,
through August 1, 2013, the amount due and owing by Mr.
Thompson pursuant to the Note was $399, 896.49, which
represented a principal balance of $220, 304.54 plus per diem
interest in the amount of $71.83 from August 2, 2013, until
paid, plus other fees and funds in the amount of $44, 069.34,
plus reasonable attorney's fees and all collection costs
incurred by BONY (Dkt. No. 239, at 2-3). BONY contends
that these sums are permitted under the Note and Mortgage.
BONY relies, in part, on the affidavit of Jim Mikoley,
Assistant Vice President of AMS Servicing, LLC
(“AMS”), the successor loan servicer for BONY, as
support for its requested damages (Dkt. No. 171, Ex. 3,
response, Mr. Thompson contends that: (1) there are clear
discrepancies in BONY's records that create a genuine
issue of material fact as to the amount of interest, fees,
and costs that Mr. Thompson owes on the Note; (2) BONY lacks
standing to seek the relief requested; (3) BONY's
foreclosure suit was filed after the expiration of the
five-year statute of limitations set forth in Arkansas Code
Annotated § 4-3-118(a), and; (4) the Court failed to
consider BONY's June 15, 2008, acceleration letter in its
Order determining that BONY's action was not barred by
the statute of limitations, and the failure to consider that
letter gives the appearance of impropriety (Dkt. No. 247).
Genuine Issues Of Material Fact
Thompson's first point is that there are clear
discrepancies in BONY's records regarding the amount he
owes on the Note. Mr. Thompson appears to argue that the
Court's prior Order determining that there is a genuine
issue of material fact with regard to the amount owed by Mr.
Thompson bars BONY's present motion for damages. Res
judicata bars relitigation of a claim if: (1) the prior
judgment was rendered by a court of competent jurisdiction;
(2) the prior judgment was a final judgment on the merits;
and (3) the same cause of action and the same parties or
their privies were involved in both cases. Cardona v.
Holder, 754 F.3d 528, 530 (8th Cir. 2014). Res judicata
does not apply in the absence of a final judgment on the
merits, particularly when the same litigation is pending.
Looney v. Looney, 986 S.W.2d 858, 862 (Ark. 1999)
(holding that res judicata does not apply to a judgment
entered during the same litigation). The Court's prior
Order was not a final judgment on the merits because the
issue of damages remained. In addition, there is no
“prior litigation” as the Court's order is
part of the continuing trial level litigation between these
parties. Therefore, res judicata is inapplicable.
Thompson next points the Court to a letter from AMS, dated
August 19, 2013, which states that the balance on the Note as
of that date is $436, 875.91 (Dkt. No. 247, Ex. B, AMS
Letter). Mr. Thompson contends that this letter, when
compared to Mr. Mikoley's affidavit stating that the
amount due as of August 1, 2013, is $399, 896.49, creates a
genuine issue of material fact regarding the amount due. The
validation of debt in Mr. Mikoley's affidavit is dated
August 1, 2013, whereas the AMS letter is dated August 19,
2013. The Note and Mortgage permit the accrual of interest on
a daily basis. The AMS letter indicates that the amount of
the balance may include additional charges such as corporate
advances, negative escrow balances, outstanding late charges,
and any other outstanding allowable charges. Mr.
Mikoley's affidavit states that the debt balance only
includes interest accrued through August 1, 2013, and other
fees and funds in the amount of $44, 069.340. Thus, the two
amounts may not include the same fees and other charges.
addition, Mr. Thompson has failed to rebut BONY's record
evidence regarding the principal amount due and the interest
and fees charged with any record evidence of his own. Mr.
Thompson contends that this is because he did not have the
luxury of access to loan documents. However, Mr. Thompson
provides no explanation for why he could not obtain those
documents. Given these circumstances, the Court declines to
find that the AMS letter creates a genuine issue of material
fact with regard to the amount owed on the Note by Mr.