Keith Thomas v. Bank of America, N.A., et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11661
Non-Argument Calendar
____________________
KEITH THOMAS,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
a.k.a. BAC Home Loans Servicing, LLP,
a.k.a. Countrywide Home Loans Servicing, LP,
a.k.a. Bank of America Corp.,
RUBIN LUBLIN, LLC,
MCGUIRE WOODS, LLP,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
a.k.a. Merscorp Holdings, Inc.,
SELECT PORTFOLIO SERVICING, INC., et al.,
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2 Opinion of the Court 22-11661
Defendants-Appellees,
NORTHSTAR MORTGAGE GROUP, LLC,
Defendant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-03369-WMR
____________________
Before W ILLIAM PRYOR , Chief Judge, J ORDAN, and R OSENBAUM , Cir-
cuit Judges.
PER CURIAM:
Keith Thomas appeals
pro se the dismissal of this consoli-
dated action against Bank of America, N.A., Rubin Lublin, LLC,
McGuire Woods, LLP, Mortgage Electronic Registration Systems,
Inc., Select Portfolio Servicing, Inc., and DLJ Mortgage Capital, Inc.
Thomas complained of fraud, civil conspiracy, mail fraud, racket-
eering, and violations of the Civil Rights Act of 1866, 42 U.S.C.
§ 1982, relating to the 2010 assignment of a security deed on his
Georgia residence and later foreclosure attempts. The district court
dismissed the complaint as barred by res judicata and denied
Thomas’s motion to recuse. We affirm.
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22-11661 Opinion of the Court 3
In 2011, Thomas filed in the district court a complaint alleg-
ing that Bank of America, MERS, and other entities violated state
and federal law in attempting to initiate foreclosure proceedings
and to collect unpaid mortgage payments. Thomas alleged that, in
2007, he obtained a residential mortgage from Northstar Mortgage
Group, LLC, and conveyed the property as collateral for the mort-
gage to MERS, which was Northstar’s nominee and its successor
and assigns. He alleged that, in 2010, MERS assigned the security
deed to entities that later merged into Bank of America, but the
assignment was invalid because Northstar’s mortgage license was
revoked before the assignment. The district court dismissed the ac-
tion with prejudice, and we affirmed.
Thomas v. Bank of America,
N.A., 557 F. App’x 873 (11th Cir. 2014).
Thomas then filed in state court second and third actions
challenging the assignment and to stop foreclosure. The state court
dismissed the actions based on res judicata and collateral estoppel,
respectively, and the state appellate court affirmed. Thomas filed a
fourth lawsuit on the matter in the district court, but it was dis-
missed for lack of subject matter jurisdiction.
In 2021, Thomas initiated the instant lawsuit. The defend-
ants moved to dismiss and argued that his claims were barred by
res judicata. During argument on the motions, counsel for defend-
ants raised the possibility of the district court issuing an injunction
to prevent Thomas from filing similar lawsuits in the district court
“under its inherent power to manage its docket and/or Rule 11.”
The district court directed the defendants “to move for the [c]ourt
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4 Opinion of the Court 22-11661
to issue such an injunction and/or to brief whether the [c]ourt has
the authority to
sua sponte issue such an injunction.” The district
court also directed Thomas to file a postjudgment motion, Fed. R.
Civ. P. 60(b), in the first federal action if he wanted to attack the
original judgment. Thomas did so and alleged that the district
judge and magistrate judge in that first action should have recused
because they had home mortgage contracts involving one of the
defendants. The district court denied the Rule 60(b) motion, and
Thomas did not appeal. Thomas moved for the district judge in the
instant action to recuse too because MERS was an identified entity
for the district judge’s personal home mortgage.
Several defendants filed a brief regarding the availability of
sanctions. They stated that “[r]ather than filing a motion for sanc-
tions, the [d]efendants are filing this brief regarding the [c]ourt’s
powers to
sua sponte impose sanctions.” The district court ordered
Thomas to show cause why he should not be enjoined from filing
similar lawsuits in the future. Thomas responded that the 21-day
safe harbor provision in Rule 11 applied to him and that a sanction
would be unconstitutional because he had not acted in bad faith.
He reasserted the merits of his complaint and cited a 2005 Nebraska
state court decision to support his argument that the 2010 assign-
ment was invalid. He asked the district court to withhold ruling on
sanctions and to certify questions regarding the ability of MERS to
operate legally in Georgia to the Georgia Supreme Court.
The district court dismissed the action with prejudice as
barred by res judicata. It denied the motion for recusal because the
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22-11661 Opinion of the Court 5
district judge did not have a personal bias or prejudice concerning
a party to the action or a financial interest in the subject matter, as
his security deed involving MERS was part of a standard consumer
transaction conducted at arm’s length. The district court enjoined
Thomas from filing future lawsuits on this matter against any of
the defendants without prior court approval. The district court
stated that it had the authority to do so under Rule 11(b) and its
inherent power and that the Rule 11(c) safe-harbor provision did
not apply because there was no motion for sanctions. It declined to
certify questions to the Georgia Supreme Court because Thomas’s
questions “[were] frivolous attempts to extend his campaign of lit-
igation.”
In his brief, Thomas does not challenge the dismissal of his
complaint based on res judicata. “[W]e read briefs filed by
pro se
litigants liberally,” but Thomas has abandoned his opportunity to
contest the dismissal of his complaint based on res judicata.
See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). He argues
instead that dismissal was improper because the district court did
not apply the 2005 Nebraska decision and did not certify questions
to the Georgia Supreme Court. But because the district court dis-
missed the case based on res judicata, it had no reason to consider
a Nebraska state court decision that was available before Thomas
filed his first lawsuit. And because the certification procedure,
where available, is left to the “sound discretion of the federal
court,” the district court had no obligation to use it.
McKesson v.
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6 Opinion of the Court 22-11661
Doe, 141 S. Ct. 48, 51 (2020) (quoting
Lehman Bros. v. Schein, 416
U.S. 386, 391 (1974)).
Thomas also argues that the district judge should have
recused,
see 28 U.S.C. § 455, due to MERS being a party to his
home mortgage transaction, but we disagree. We review a decision
on whether to recuse for abuse of discretion.
Thomas v. Tenneco
Packaging Co., 293 F.3d 1306, 1319-20 (11th Cir. 2002). A judge
must recuse himself “in any proceeding in which his impartiality
might reasonably be questioned,” and where “he has a personal
bias or prejudice concerning a party.” 28 U.S.C. § 455(a), (b)(1).
“[T]he standard is whether an objective, fully informed lay ob-
server would entertain significant doubt about the judge’s impar-
tiality.”
Thomas, 293 F.3d at 1329. But consumer transactions
made in the ordinary course of business do not warrant recusal.
Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296, 1297-98 (11th Cir.
1997).
The district judge was not required to recuse under section
455. Having a home mortgage that involves MERS, an electronic
system designed to track ownership interests in home mortgages,
is no more than a relationship arising from the execution of a stand-
ard contract during the ordinary course of business.
See id. We
deny Thomas’s motion for our recusal for the same reason. And
although Thomas argues that the district judge and magistrate
judge from his first federal action should have recused too, he fails
to identify an appealable judgment or order that we can review.
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22-11661 Opinion of the Court 7
See Whetsone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067,
1079-80 (11th Cir. 2003).
Thomas also challenges the pre-filing injunction, but we dis-
cern no error. We review the imposition of sanctions under Rule
11 or inherent power for abuse of discretion.
Johnson v. 27th Ave.
Caraf, Inc., 9 F.4th 1300, 1310, 1314 (11th Cir. 2021). When a district
court issues sanctions on its own initiative under Rule 11(c)(3), the
“safe harbor” provision of Rule 11(c)(2) does not apply. Fed. R. Civ.
P. 11(c)(2), (3). So the district court properly exercised its authority
to sanction Thomas without providing him a 21-day “safe harbor.”
The district court issued a show cause order on its own initiative
and gave Thomas notice and opportunity to respond. The record
supports the finding that Thomas subjectively and objectively
acted in bad faith in persisting with his extensive campaign of liti-
gation, despite having ample reason to know after four lawsuits on
the matter that his claims were barred and frivolous. Although
Thomas argues that the injunction violates his constitutional
rights, his right of access to the courts is “neither absolute nor un-
conditional.”
Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008).
The district court did not abuse its discretion in imposing a nar-
rowly-written pre-filing injunction to proscribe additional frivolous
lawsuits involving his mortgage against the named defendants.
We AFFIRM the dismissal with prejudice of Thomas’s com-
plaint and DENY his motion for recusal.
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