[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 11639
Non

- Argument Calendar

____________________
STEVEN CLAYTON THOMASON,
Plaintiff

- Appellant,

versus DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Home Equity Mortgage Loan Asset

Backed Trust Series INABA 2006

- A, Home Equity Mortgage Loan asset

- Backed Certificates Series INABS 2006

- A8,

Defendant

- Appellee.

____________________ USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 1 of 92 Opinion of the Court 21

- 11639 Appeal from the U nited States District Court for the Middle District of Alabama D.C. Docket No. 2:20

- cv

- 00292

- WKW

- KFP

____________________ Before J ORDAN , N EWSOM , and B LACK , Circuit Judges.
PER CURIAM: Steven Thomason, proceeding pro se , appeals following the district court ’ s dismissal of his civil complaint alleging Deutsche Bank National Trust Company (Deutsche Bank) illegal ly foreclos ed on his property , in violation of Alabama law. Thomason raises several issues on appeal, which we address in turn. After r eview, we affirm the district court.
I. BACKGROUND

I n 2005, Thomason’s wife borrowed money from a lender

to purchas e property located in Montgomery, Alabama (the Property). She executed two promissory notes (the Notes) at closing. As security for the N o tes, she and Thomason executed two separate mortgages to the lender’s nominee. T he Thomasons defaulted on the N otes , and Thomason’s wife died in October 2009

. I n February 2011, the lender’s nominee transferred and assigned the first mortgage to Deutsche Bank as Trustee. Deutsche Bank, in turn, notified Thomason it had accelerated the unpaid balance of the debt and intended to seek nonjudicial foreclosure of the Property. USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 2 of 921

- 11639 Opinion of the Court 3

B efore the foreclosure wa s scheduled to take place, Thomason filed actions against Deutsche Bank and other defendants to stop the foreclosure or to obtain damages for wrongful foreclosure and other improprieties. Thomason filed Thomason v. OneWest Bank, FS B

, et al. , N o. 2:12

- cv

- 0 0604

- MHT

- WC ( Thomason I ) , a pro

se complaint in the Middle District of Alabama alleging various mortgage

- based claims under federal law

. The district court disposed of Thomason I in stages, and eventually granted summary judgment to the d efendants

. A s he was litigating Thomason I
, Thomason filed Thomason v. Ocwen Loan Servicing, LLC et al.
, No

. 2:19

- cv

- 00256

- ECM

- SMD ( Thomason II ) , a pro se complaint in the Circuit Court of Montgomery County that was removed to federal court, alleging seve ral state law claims relating to the mortgage

. The district court also dismissed this case with prejudice. In 2020, Thomason filed the instant action, a pro se complaint against Deutsche Bank in the Circuit Court of Montgomery County. After the bank removed the case to federal court, he filed

a counseled amended complaint against Deutsche Bank seeking
, inter alia
, a permanent injunction against foreclosure of the Property , and a claim for “wantonness

. ” The district court dismissed Thomason’s complaint because, among other reasons, Thomason I and Thomason II meant res judicata barred his claims. USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 3 of 94 Opinion of the Court 21

- 11639

I I

. DISCUSSION
A. RemovalThomason asserts the district court lacked removal jurisdiction because th e parties were not completely diverse because Deutsch e Bank’s attorneys were from Alabama , and the $75,000 threshold was unsatisfied. A defendant may remove any civil action brought in a state court to a federal district court that has original jurisdictio n over the action. 28 U.S.C. § 1441(a). Federal courts have diversity

- of

- citizenship jurisdiction when the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). National banking associations aredeemed citizens of the States in which they are “respectively located.” 28 U.S.C. § 1348. A national bank is “respectively located” in the State in which its main office is located, as set forth in its articles of association. Wachovia Bank v. Schmidt , 546 U.S. 303, 307 (2006).
The district court had diversity jurisdiction over the action and thus did not err in removing this case to federal court. See Holston Invs., Inc. B.V.I. v. LanLogistics Corp. , 677 F.3d 1068, 1070 (11th Cir. 2012) (sta ting w hether a court has subject

- matter jurisdiction, including diversity jurisdiction, is a question of law that we review de novo )

. First, Thomason was a citizen of Alabama, and Deutsche Bank was a national bank association with its main office in Calif ornia; thus the parties were diverse. Deutsche Bank’s attorneys did not affect the citizenship of the parties because they were not parties to the action. Second, the amount in controversy based USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 4 of 921

- 11639 Opinion of the Court 5 on the value of the Property ($114,200), the amount due on the mortgage ($145,529), and Thomason’s listed expenses ($117,000) totaled more than $75,000. A ccordingly, the district court had jurisdiction and we affirm in this respect.

B. Res Judicata
Thomason contends res judicata did not apply because (1) no court ha d addressed Deutsche Bank’s 2018 attempted foreclosure of the Property, (2) the district court in Thomason II improperly denied his claim , and (3) the bank ’s foreclosure was prohibited under the Servicemembers Civil Relief Act because he transferred title to his daughter who was called to active military duty in 2018.

R

es judicata bars a plaintiff from raising a claim that has been previously litigated where “(1) there is a final judgme nt on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases.” Griswold v. Cnty. of Hillsborou gh , 598 F.3d 1289, 1292 (11th Cir. 2010) (quotation marks omitted). “ I f a case arises out ofthe same nucleus of operative facts, or is based upon the same factual predicate, as a former action, the two cases are really the same claim or cause of action f or purposes of res judicata.” Baloco v. Drummond Co., Inc ., 767 F.3d 1229, 1247 (11th Cir. 2014) ( quotation marks omitted and alterations adopted). “In addition, res judicata applies not only to the precise legal theory presented in the prior case, but t o all legal theories and claims arising out of the USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 5 of 96 Opinion of the Court 21

- 11639 nucleus of operative fact” that could have been raised in the prior

case. Id. (quotation marks omitted).
T he district court did not err in dismissing Thomason’s complaint due to res judicata

. See Jang v. United Techs. Corp. , 206 F.3d 1147, 1149 (11th Cir. 2000 ) (reviewing dismissal based on res judicata de novo )

. Thomason did not challenge the first three elements of res judicata
, and the record shows these elements were

met

. First, the district court had jurisdiction in Thomason I and II

. 28 U.S.C. § 1331 (providing d istrict courts have jurisdiction over civil actions arising under the laws of the United States ); 12 U.S.C. § 1819(b)(2)(A), (B) (stating a ll civil suits involvi ng the FDIC aredeemed to arise under the laws of the United States and it can remove a case in which it is a party to federal court )

. Second, Deutsche Bank was a party in all three actions. Griswold , 598 F.3d
at 1292 . Third, there w ere final judgment s on the merits in the previous cases. Id. Fourth, the causes of action were functionally the same because they arose from the same factual nucleus

— all involved the same mortgages and subsequent default. See Baloco , 767 F.3d at
1247. Thomason used these events to first allege “illegal foreclosure” under federal law, then to allege apparent state law claims of “interference with inheritance” and illegal foreclosure, and, in thiscase, sought an injunction and to raise a claim for wanton foreclosure

. Desp ite his contention he could not have previously litigated the June 28, 2018 , foreclosure notice, he filed Thomason II one month later, and res judicata bars claims that could have been USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 6 of 921

- 11639 Opinion of the Court 7 brought earlier but were not. Id. Moreover, Thomason moved to amend his complaint to add claims challenging the June 28, 2018, foreclosure notice , but the district court denied that motion on grounds of futility and Thomason did not appeal that denial.

H is argument the Thomason II district court wrongly failed

to c onsider some of his arguments is unavailing because res judicata prevents relitigation of wrongly decided issues. See B & B Hardware, Inc. v. Hargis Indus., Inc. , 575 U.S. 138, 157 (2015) ( “Issue preclusion prevents relitigation of wrong decisions just as much as right ones.” (quotation marks omitted and alterations adopted) ). Finally, the district court did not err in declining to consider Thomason’s Servicemembers Civil Relief Act claim, because he could not amend his complaint via a response to Deutsch e Bank’s motion to dismiss. See Rosenberg v. Gould , 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum,

t he issue has not been raised properly.” (quotation marks o mitted))

. Thus, we affirm in this respect. 1

1 T he district court also dismissed Thomason’s case under Fed eral R ule of Civ il P rocedure 12(b)(6) because (1) he provided no legal or factual support for his “interference

- with

- property

- rights theory, (2) there was no statute of limitation for foreclosing on a mortgage under Alabama law , and (3) there was no tort action for wanton mortgage servicing under Alabama law

. Even if we were to assume, arguendo , that res judicata did not apply, we would affirm the dis trict court’s conclusion that Thomason’s complaint failed to state a claim upon which relief could be granted. USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 7 of 98 Opinion of the Court 21

- 11639
C. Injunction
Thomason also asks us to issue a n injunction to prevent Deutsche Bank from foreclosing on the Property

. Thomason’s initial brief, liberally construed, asks us to grant him an injunction to prevent Deutsche Bank from foreclosing on the Property while his appeal is pending, which is permissible under Fed eral R ule of App ellate P rocedure 8. Erickson v. Pardus
, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed

. ” (quotation marks omitted))

. However, the record, as supplemented, 2 shows Thomason’s request for injunctive relief is now moot because the Property was sold in September 2021 following a foreclosure

. See Fla. Ass’n of Rehab. Facilities v. State of Fla. Dep’t of Health & Rehab. Servs. , 225 F.3d 1208, 1217 (11th Cir. 2000) ( “When events subsequent to the commencement of a lawsuit create a situation in which the court can no longer give the

2 After Th omason submitted his initial brief, Deutsche Bank moved us for leave to supplement the record with a foreclosure deed, recorded October 1,2021, reflecting a sale of the Property, because it shows that Thomason’s request for injunctive relief enjoining the foreclosure sale of the Property is now
moot. We GRANT Deutsche Bank’s motion to supplement the record with the foreclosure deed for the Property because it helps us determine whether we should dismiss a portion of Thomason’s appeal

⸺ relating to his req uest for injunctive relief

⸺ for lack of jurisdiction. See Vital Pharms., Inc. v. Alfieri
, 23 F.4th 1282, 1288 (11th Cir. 2022) (stating we have deemed supplementation of the record appropriate w here supplemental material contains facts that illuminate a m ootness issue )

. USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 8 of 921

- 11639 Opinion of the Court 9plaintiff meaningful relief, the case is moot and must be dismissed.” ). As we can no longer prevent the foreclosure of the Property , we di smiss Thomason’s request for injunctive relief as moot. III. CONCLUSON
W e affirm the district court’s dismissal of Thomason’s amended complaint and dismiss his request for injunctive relief.
AFFIRMED in part, DISMISSED in part

. USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 9 of 9