Lowry v. JP Morgan, Ariz. Ct. App. (2017)
Lowry v. JP Morgan, Ariz. Ct. App. (2017)
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
v.
AFFIRMED
APPEARANCES
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.
B R O W N, Chief Judge:
BACKGROUND
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DISCUSSION
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A. Res judicata
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identical to those raised in Lowry I; those claims are plainly barred by res
judicata. Other claims raised in Lowry II, although given different labels
abusive lending and collection practices, impermissible transfers of the
mortgage to varying loan servicers, deceptive and fraudulent schemes
arise from the same circumstances underlying the claims in Lowry I. Both
lawsuits are predicated on the 2006 loan and Lowrys unsuccessful efforts
to modify the loan. Thus, except for claims that arguably arose after Lowry
I,2 the claims in Lowry II derive from the same transactional nucleus and
therefore Lowry could have brought them in Lowry I. See Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) ([T]hese are all
grounds for recovery which could have been asserted, whether they were
or not, in a prior suit between the same parties . . . on the same cause of
action. (quoting Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998))).
3 Lowry also asserts that res judicata does not apply because the
dismissal order in Lowry I is subject to a pending appeal. Contrary to
Lowrys assertion, [t]he established rule in the federal courts is that a final
judgment retains all of its res judicata consequences pending decision of the
appeal. Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 1988).
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Based on our own review of the record, and in light of Lowrys failure to
address the merits of Defendants motion to dismiss the claims that were
not otherwise barred by res judicata, the superior court did not err in
granting the motion.
CONCLUSION