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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CV-0024
KAREN RICHARDSON, APPELLANT,
V.
MCCABE, WEISBERG & CONWAY, LLC, et al., APPELLEES.
Appeal from the Superior Court of the District of Columbia (2020-CA-000741-B)
(Hon. Yvonne Williams, Trial Judge)
(Submitted May 2, 2024 Decided Sept. 26, 2024)
Donald M. Temple for appellant.
Aaron D. Neal for appellees.
Before EASTERLY, HOWARD, and SHANKER, Associate Judges.
EASTERLY, Associate Judge: Karen Richardson appeals from a Superior Court
order dismissing on res judicata grounds her claims of fraudulent and/or intentional
misrepresentation against McCabe, Weisberg & Conway, LLC (“MWC”) and
Trustees Laura H.G. O’Sullivan and Chasity Brown (the “Trustees”), negligent
misrepresentation against MWC, and breach of fiduciary duty against the Trustees 2
for actions related to the judicial foreclosure of her home. For the following reasons,
we are constrained to reverse the Superior Court’s judgment on the limited issue of
privity. We remand for further proceedings consistent with this opinion.
I. Background
In 2008, Ms. Richardson obtained a loan from Taylor, Bean & Whitaker
Mortgage Corporation (“TBW”) that she secured through a promissory note and a
deed of trust to the home she owned at 808 I St., NE. The Federal Home Loan
Mortgage Corporation (“Freddie Mac”) later became the owner of the promissory
note and, after a series of transfers, successors to TBW assigned Nationstar
Mortgage, LLC (“Nationstar”) to be the holder and servicer of the note. Nationstar
then executed a deed of appointment to appoint several members of MWC, including
Laura H.G. O’Sullivan and Chasity Brown, as Substitute Trustees of the deed of
trust. Although the language in the deed of trust stated that the “Lender” had the
power to appoint successor trustees, the deed of appointment stated that, under the
deed of trust, the “holder” of the note could appoint substitute trustees who would
have “all the rights, powers and authority” as the trustees who were originally
named. 3
A. The Foreclosure Litigation
In September 2015, Nationstar filed a complaint for judicial foreclosure
against Ms. Richardson, alleging that she had defaulted on her mortgage.
Ms. Richardson responded by filing counterclaims against Nationstar, TBW, and
another mortgage servicer, claiming that they had violated various federal and local
fair lending and consumer protection laws. Ms. Richardson also contested whether
Nationstar had been properly assigned as a holder of the note and whether it could,
therefore, foreclose on her home. The Superior Court (Hon. Todd Edelman)
concluded that Nationstar was a holder of the note and entitled to enforce it, granted
summary judgment in favor of Nationstar, and ordered the judicial foreclosure of the
property to be carried out by the Trustees. Ms. Richardson appealed the Superior
Court’s decision, and we ultimately dismissed the appeal as moot (because, in the
absence of a stay, the property had already been sold, see infra).
On February 26, 2019, after a year and a half of delay during which
Ms. Richardson filed for bankruptcy, MWC, acting as counsel for Nationstar, sent
Ms. Richardson a Notice of Impending Foreclosure Sale. The sale was scheduled
for March 28, 2019.1 In an attempt to prevent the sale, Ms. Richardson arranged for
The notice erroneously listed the date of the sale as March 28, 2018, but the 1
accompanying advertisement clarified the correct year as 2019. 4
her cousin, Carolyn Jackson, to purchase her home and redeem the mortgage.
Ms. Jackson hired ATG Title, Inc., a real estate settlement agency, to help conduct
the purchase. ATG then contacted MWC to request the specific amount needed to
redeem Ms. Richardson’s mortgage. Sometime before March 1, 2019, MWC sent
Ms. Richardson a letter listing the payoff amount—good through March 5, 2019—
as $270,647.21. Closing for this sale of the property to Ms. Jackson was scheduled
to take place on March 26, 2019, and ATG requested an updated payoff amount from
MWC that would be accurate as to that date. MWC, however, did not respond to
ATG’s request until after 5:00 pm on March 26. The updated payoff figure MWC
sent erroneously included a tax lien Ms. Richardson had previously paid, making the
payoff figure roughly $74,000 higher than MWC’s earlier estimation. Ms. Jackson
did not go through with the purchase. On March 28, 2019, the Trustees conducted
the foreclosure sale and sold the property to Hantek Investments, LLC.
Following the foreclosure sale, Nationstar, represented by MWC, returned to
the Superior Court to ratify the sale of the property. Ms. Richardson opposed the
ratification motion and claimed that she was entitled to relief from wrongful
foreclosure. Specifically, she argued (1) Nationstar2 and MWC violated her right
2 Ms. Richardson referred to Nationstar by its alleged tradename “Mr. Cooper” throughout these filings. 5
under the deed of trust and D.C. Code § 42-815.01(b) to receive an accurate report
of the amount needed to cure the default on her mortgage prior to the foreclosure
sale; (2) Nationstar engaged in fraudulent misrepresentation when MWC sent the
incorrect payoff amount; and (3) the Trustees demonstrated “inequitable conduct
with no regard [for the] fiduciary duty” they owed to Ms. Richardson. The Superior
Court (Hon. Hiram Puig-Lugo) granted Nationstar’s motion to ratify and rejected
Ms. Richardson’s claims, explaining that Ms. Jackson had obtained sufficient
financing to purchase the property and cover the initial payoff amount; pursuant to
D.C. Code § 42-815.01(b), Ms. Richardson’s right to cure the default on her
mortgage expired on March 22, 2019, five days before the scheduled foreclosure
sale on March 28, 2019; and “all that Ms. Jackson had to do” to redeem
Ms. Richardson’s mortgage “was tender [the] payment no later than March 22nd,”
which did not occur. The court concluded that the incorrect payoff amount
Nationstar provided Ms. Richardson on March 26, 2019, accordingly, did not
prejudice her because her right to cure the default had already lapsed.
Ms. Richardson moved for reconsideration, which the Superior Court denied.
Ms. Richardson then appealed the Superior Court’s order denying reconsideration,
which this court dismissed as moot (again because the property had already been
sold).
After Nationstar moved to ratify the accounting and close the case in the 6
Superior Court, Ms. Richardson continued to object to the foreclosure sale, arguing,
among other things, that MWC and the Trustees had given her an inaccurate loan
payoff amount and had failed to explain the error. The Superior Court once again
rejected Ms. Richardson’s arguments, ratified the accounting, and ordered the
foreclosure sale as final.3 Ms. Richardson did not appeal.
B. Ms. Richardson’s Affirmative Suit
After the Superior Court closed the foreclosure case, Ms. Richardson filed suit
against Nationstar; Freddie Mac; the Internal Revenue Service; Hantek Investments,
LLC, the real estate broker who conducted the foreclosure sale; the Trustees; and
MWC. Ms. Richardson claimed, inter alia, that Nationstar and MWC (as
Nationstar’s counsel) had wrongfully foreclosed on her property, that Hantek and
the real estate broker wrongfully evicted her, and that Nationstar, MWC, and the
Trustees engaged in common law fraud and intentional misrepresentation. The
Superior Court (Hon. Florence Y. Pan) dismissed Ms. Richardson’s claims against
3 Hantek Investments, LLC, the purchaser of the property, filed an eviction action in September 2019 in the landlord and tenant division of the Superior Court (2019 LTB 19572). Ms. Richardson filed a motion to dismiss, but the Superior Court (Hon. Melvin R. Wright) denied her motion and entered a nonredeemable judgment of possession for Hantek. Although Ms. Richardson unsuccessfully sought to stay her eviction and unsuccessfully appealed the Superior Court (Hon. Lee F. Satterfield)’s decision not to stay her eviction, she did not appeal the eviction judgment. 7
Nationstar as barred by res judicata and collateral estoppel following the foreclosure
action, dismissed her claims against Hantek as barred by res judicata based on an
earlier successful suit by Hantek for possession of the property, see supra note 3,
and dismissed her claims against Freddie Mac for failure to state a claim. The court
granted Nationstar, Hantek, and Freddie Mac a final judgment under Super. Ct. Civ.
R. 54(b),4 but held Ms. Richardson’s claims against MWC and the Trustees (whom
she had yet to serve) in abeyance. Ms. Richardson appealed the Superior Court’s
order5 and this court summarily affirmed.
Back in Superior Court, Ms. Richardson obtained permission to file a second
4 The Superior Court purported to grant a final judgment under Super. Ct. Civ. R. 54(b) to Nationstar, Hantek, and Freddie Mac during a hearing on Hantek’s motion for entry of final judgment and for release of notice of lis pendens, but later issued a written order that specifically granted a final judgment only as to Hantek. 5 In her brief to this court, Ms. Richardson did not mention that the court had granted a partial judgment under Rule 54(b) and inaccurately stated that “[t]his appeal is from a final order or judgment that disposes of all parties’ claims.” It is far from clear that the Superior Court’s Rule 54(b) ruling either extended to Nationstar and Freddie Mac, see supra note 4, or was adequately substantiated as to any party. See Peoples v. Warfield & Sanford, Inc., 660 A.2d 397, 403 (D.C. 1995) (explaining that the trial court’s “Rule 54(b) certification must be accompanied by a statement of reasons explaining why the judgment should be deemed final for purposes of appeal”). Thus, it is unclear whether Ms. Richardson should have been able to separately appeal the partial judgment given to Nationstar, Hantek, and Freddie Mac. 8
amended complaint again naming MWC and the Trustees as defendants 6 and
alleging that (1) the Trustees breached their fiduciary duty to Ms. Richardson by
including the released tax lien in the second payoff letter and wrongly representing
that they had been appointed as substitute trustees, (2) the Trustees and MWC
engaged in fraudulent and/or intentional misrepresentation by providing her with an
incorrect payoff amount and making misrepresentations about whether the Trustees
were properly appointed, and (3) MWC engaged in negligent misrepresentation by
providing the incorrect payoff amount. MWC and the Trustees moved to dismiss,
averring that Ms. Richardson’s claims were barred by res judicata and collateral
estoppel based on the foreclosure litigation, and should be dismissed pursuant to
Super. Ct. Civ. R. 12(b)(6). After Ms. Richardson argued that res judicata did not
apply because MWC and the Trustees were not parties to the foreclosure action and
were not in privity with Nationstar, MWC and the Trustees claimed that they had
privity with Nationstar as Nationstar’s agents and “[t]here [was] no viable inference
that [their] involvement [in the foreclosure] was anything other than in the context
of acting as agent[s] for [Nationstar] . . . as trustees and [Nationstar’s] counsel.”
6 Ms. Richardson’s complaint also indicated that Michael Cantrell, “the managing attorney” at MWC, had injured her but did not name him as a defendant, and she named Trustees Abby Moynihan, Erin Shaffer, and Yolanda Clarke as defendants but did not properly serve them. 9
The Superior Court (Hon. Yvonne Williams) initially mistakenly reviewed
Ms. Richardson’s first amended complaint (rather than her second amended
complaint) and dismissed her claims as barred by res judicata. After Ms. Richardson
moved for reconsideration, the Superior Court revisited its analysis but determined
that res judicata continued to bar Ms. Richardson’s claims because they mirrored
arguments she had made or could have made in the foreclosure proceedings. The
court indicated (incorrectly) that it believed Ms. Richardson had not disputed MWC
and the Trustees’ assertion of privity with Nationstar prior to her motion for
reconsideration, and it ruled that the fraud exception to res judicata did not apply.
Ms. Richardson timely appealed.
II. Analysis
Under the doctrine of res judicata, or claim preclusion, a final judgment on
the merits bars relitigation in a subsequent proceeding of all claims that were actually
litigated or “could have been litigated in the prior proceeding” between the same
parties or their privies. Faulkner v. Gov’t Emps. Ins. Co., 618 A.2d 181, 183 (D.C.
1992).
In reviewing an order granting a motion to dismiss on res judicata grounds
pursuant to Super. Ct. Civ. R. 12(b)(6), “[w]e accept all factual allegations in the
complaint as true, and construe all facts and inferences in favor of the plaintiff.” 10
Peterson v. Washington Tchrs. Union, 192 A.3d 572, 575 (D.C. 2018) (internal
quotation marks omitted). “Whether the trial court correctly applied res judicata
principles to the facts of this case is a legal issue that we decide de novo.” Shin v.
Portals Confederation Corp., 728 A.2d 615, 618 (D.C. 1999).
Ms. Richardson does not contest that the foreclosure litigation ended with a
final judgment on the merits but she argues that her claims against MWC and the
Trustees were not barred by res judicata as a result of that litigation because (1) her
second amended complaint raised distinct claims that were not, and could not have
been, previously litigated; (2) the fraud exception to res judicata should apply; and
(3) MWC and the Trustees were not in privity with Nationstar. We reject the first
and second arguments and remand to allow litigation of the third.
A. Identity of Claims
Ms. Richardson first challenges the Superior Court’s determination that
identity of claims existed between her present suit and the foreclosure litigation,
which encompasses the trial court’s initial foreclosure order and the subsequent
litigation of the post-sale ratification and accounting. We discern no error.
For res judicata to bar a subsequent action, the claim in the second action must
be “the same as the claim which was raised or which might have been raised in the 11
prior proceeding.” Peterson, 192 A.3d at 575 (quoting Calomiris v. Calomiris, 3
A.3d 1186, 1190 (D.C. 2010)). Whether a “present claim is the same” for purposes
of res judicata, id., depends “not [on] the theory on which a plaintiff relies” but on
whether the claims share “a common nucleus of facts,” Faulkner, 618 A.2d at 183
(internal quotation marks omitted); see also Whiting v. Wells Fargo Bank, N.A., 230
A.3d 916, 927 (D.C. 2020) (“It does not matter that the earlier and later proceedings
differ in nature: as long as . . . the essence of the claim and evidence necessary to
establish it are the same . . . .” (internal quotation marks omitted)). In other words,
“a second action may be precluded on the ground that the same claim or cause of
action was advanced in the first action even though a different source of law is
involved,” Smith v. Jenkins, 562 A.2d 610, 614 (D.C. 1989) (quoting 18 Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§ 4411 (2d ed. 1981)), and res judicata will bar the subsequent litigation of
affirmative claims that could have been raised in earlier litigation as a defense, Shin,
728 A.2d at 619.
To determine whether two actions arise out of a “common nucleus of facts,”
we consider “the nature of the two actions” and “whether the facts [in each] are
related in time, space, origin, or motivation, whether they form a convenient trial
unit, and whether their treatment as a unit conforms to the parties’ expectations or
business understanding or usage.” Faulkner, 618 A.2d at 183 (quoting Smith, 562 12
A.2d at 613). While the facts underlying each claim must be closely related, they
need not be a carbon copy for identity of claims to exist; “additions to or subtractions
from the central core of fact do not change this substantial identity so as to support
piecemeal appeals.” Id. (quoting Smith, 562 A.2d at 613). In short, our analysis is
“pragmatic[],” driven by the goal of “protecting adversaries from expensive and
vexatious multiple lawsuits, conserving judicial resources, and minimizing the
likelihood of inconsistent outcomes.” Smith, 562 A.2d at 613, 615.
Ms. Richardson’s present suit involves the same claims that were or could
have been at issue in the foreclosure action. In this suit, Ms. Richardson alleged that
the Trustees and MWC misrepresented the payoff amount and the Trustees breached
their fiduciary duty to her by sending her the incorrect payoff amount. She also
claimed that the Trustees and MWC wrongly represented that Nationstar held the
promissory note and that it therefore had standing to bring the foreclosure action and
had the power to appoint the Trustees. Similarly, in the foreclosure litigation,
Ms. Richardson defended against the ratification of the sale and the accounting by
arguing that Nationstar and MWC had failed to provide her with an accurate payoff
amount; Nationstar’s error amounted to fraudulent misrepresentation; and the
Trustees’ error constituted a breach of “their fiduciary duty.” And she defended
against Nationstar’s initial claim to foreclosure by arguing that Nationstar was “not
a holder in due course” of the note, and, therefore, did not have the same rights as 13
the lender to foreclose on her property. Although Ms. Richardson’s present suit
repackages her foreclosure defenses as claims to affirmative relief, these claims
involve the same facts and arguments she has already litigated. See Stutsman v.
Kaiser Found. Health Plan of Mid-Atl. States, Inc., 546 A.2d 367, 370 (D.C. 1988)
(observing that, for purposes of res judicata, whether a litigant brings a “second
action under a different [legal] theory . . . is irrelevant”; res judicata hinges on
whether the “factual nucleus” of the subsequent claim is the same, “not the theory
upon which a plaintiff relies”). Moreover, although Ms. Richardson’s suit
additionally challenges the validity of the deed of appointment of substitute trustees
in the foreclosure litigation, she could have litigated this claim as a defense in the
foreclosure action given that Nationstar executed the deed in 2015—well before the
2017-2019 foreclosure litigation. See Shin, 728 A.2d at 619 (holding that res
judicata barred an affirmative claim that appellant could have raised in earlier
litigation as a defense). In short, Ms. Richardson has or could have litigated the
subject matter of each of her claims in the instant suit in the foreclosure litigation.7
7 Ms. Richardson cites out-of-jurisdiction cases holding that “for res judicata purposes, claims that ‘could have been brought’” in the prior action are only those claims “in existence at the time the original complaint is filed or claims actually asserted . . . in the earlier action.” Manning v. Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (footnote and emphasis omitted). Our court has never squarely addressed this question. But see Calomiris, 3 A.3d at 1192 (holding res judicata did not bar claims that did not exist “prior to the entry of judgment” (emphasis added)); Wang 14
Ms. Richardson’s reliance on Molla v. Sanders, 981 A.2d 1197, 1200-02
(D.C. 2009), and Goldkind v. Snider Bros., Inc., 467 A.2d 468, 473-74 (D.C. 1983),
two cases in which we concluded that litigants’ subsequent causes of action raised
entirely different issues and were therefore not barred by res judicata, is misplaced.
In Molla, the Superior Court rejected an ejectment suit brought by the purchaser of
a property at a foreclosure sale against the property’s existing tenant because it
concluded that the tenant continued to have a valid lease.8 981 A.2d at 1198. The
purchaser then attempted to retroactively raise the tenant’s rent and sued the tenant
for possession based on nonpayment of rent. Id. at 1198-99. We concluded that the
purchaser’s second suit was not barred by the first because it raised different facts
and issues—the first suit dealt only with whether the tenant’s lease survived the
foreclosure, not whether the purchaser could alter the lease’s terms. Id. at 1201-02.
v. 1624 U Street, Inc., 252 A.3d 891, 898 (D.C. 2021) (explaining that claims were not barred by res judicata when they “could not have been brought during the [prior] proceedings” (emphasis added)). Even if we were to apply res judicata only to claims “in existence at the time the original complaint [in the earlier action] is filed or claims actually asserted . . . in the earlier action,” Manning, 953 F.2d at 1360 (footnote omitted), however, Ms. Richardson’s present claims would still be barred. As explained above, Ms. Richardson’s present claims are all arguments that she either raised during the foreclosure/ratification litigation or—in the case of her claim about the validity of the deed of appointment—were available to her before Nationstar filed its original complaint. 8 The purchaser purported to bring claims for “wrongful detainer,” but because there is “no statutory action for ‘wrongful detainer’ in the District of Columbia,” we interpreted the action as one for ejectment. Molla, 981 A.2d 1200. 15
By contrast, in both Ms. Richardson’s foreclosure case and the current litigation, she
contested whether Nationstar could properly exercise rights under the deed of trust
and whether she was prejudiced by the incorrect payoff letter as part of the
foreclosure action. And she could have raised the validity of the Trustees’
appointment—an issue related to the scope of Nationstar’s rights under the deed of
trust—as a defense to the foreclosure sale’s ratification.
Goldkind is similarly distinct. In Goldkind, trustees on a deed of trust won a
judgment of foreclosure against the purchasers of an apartment building. 467 A.2d
at 470. Around the same time, the purchasers sued the parties who sold them the
building, the broker, and an employee of the broker for fraud and other claims. Id.
at 469-70. After the defendants moved to dismiss, this court, sitting en banc,
determined that res judicata did bar the purchasers’ fraud claims against the sellers,
the broker, and the employee because the purchasers could have raised those claims
as a defense to the foreclosure action. Henderson v. Snider Bros., Inc., 439 A.2d
481, 486 (D.C. 1981) (en banc). But the division in Goldkind determined that res
judicata did not bar the sellers’ crossclaims against the broker and employee to
indemnify themselves from any wrongdoing on those parties’ behalf because the
crossclaims—which dealt with whether the sellers and broker had an agency
relationship—were unrelated to the earlier foreclosure action—which dealt with
whether the purchasers had defaulted on their mortgage. 467 A.2d at 474. Unlike 16
the crossclaims in Goldkind, however, the issues in Ms. Richardson’s present
action—whether Nationstar could bring the foreclosure action, the Trustees were
properly appointed, and Ms. Richardson was prejudiced by the incorrect payoff
amount—are all integrally related to whether Nationstar properly foreclosed on her
property and are issues that she raised or could have raised in that litigation.
Lastly, Ms. Richardson argues that the claims in her present suit and the ones
she raised in the foreclosure action are unrelated because the motivations behind the
suits were different, the Trustees experienced a conflict of interest in the foreclosure
litigation, and, if she had brought claims against the Trustees or MWC during the
foreclosure litigation, MWC would have been forced to cease its representation of
Nationstar, which would have “complicate[ed] the judicial foreclosure process.”
None of these arguments is persuasive.
Ms. Richardson’s contention that her present suit—which seeks to address
“the duplicitous course of conduct engaged in by . . . MWC[] [and] the Trustees”
during the foreclosure proceedings—has a different motivation than Nationstar’s
motive in bringing the foreclosure action sets up a false comparison. The issue is
not whether her motives in bringing the present suit aligned with Nationstar’s goals
in pursuing foreclosure, but whether “the facts” she alleged in her defenses to the
foreclosure/ratification litigation “are related in time, space, origin, or motivation” 17
to the facts she alleges here. Smith, 562 A.2d at 613. Because the facts
Ms. Richardson asserted in the foreclosure/ratification litigation were largely
identical to the facts she asserts in the present litigation, and she raised these facts in
both suits to argue that MWC and the Trustees engaged in misconduct, her factual
assertions shared a common nucleus. See id. at 613-14 (concluding that, where
appellant raised the same sequence of events in a subsequent suit, the factual nuclei
were “related in time, space, origin, and motivation”). And neither the Trustees’
purported conflict of interest nor any procedural complexity that would have arisen
had she added claims against MWC in the foreclosure litigation negates the
conclusion that the facts underlying Ms. Richardson’s present claims and her
defenses in the foreclosure litigation are largely the same and “form a convenient
trial unit.” Id. We therefore conclude that the claims in Ms. Richardson’s present
suit are the same claims that she raised or could have raised in the foreclosure
litigation, satisfying the first element of res judicata.
B. Fraud Exception
Ms. Richardson also argues that res judicata does not apply to her claims
because the foreclosure litigation was “tainted by fraud.” We disagree.
Res judicata will not bar a subsequent suit if the prior judgment was the
product of “extrinsic fraud.” See Laufer v. Westminster Brokers, Ltd., 532 A.2d 130, 18
133 (D.C. 1987) (explaining that extrinsic fraud “may justify non-enforcement of an
otherwise valid judgment”); see also Interdonato v. Interdonato, 521 A.2d 1124,
1132 (D.C. 1987) (“[A] prior judgment operates as res judicata only in the absence
of fraud or collusion.”). Fraud is extrinsic if it involves “deception in the conduct of
the [earlier] litigation itself, rather than fraud affecting the merits of the underlying
claim.” Laufer, 532 A.2d at 133. We have applied the extrinsic fraud exception, for
example, where there was a dispute over whether one party fraudulently induced the
other to dismiss an earlier action. Interdonato, 521 A.2d at 1132-33; see also In re
Estate of Delaney, 819 A.2d 968, 981 n.4 (D.C. 2003) (explaining that fraud is
extrinsic if it prevents a party from presenting their case).
By contrast, res judicata will bar a subsequent suit even if the prior judgment
is alleged to have been the product of “intrinsic fraud,” i.e., if the merits of the claim
involve alleged fraud. Laufer, 532 A.2d at 133 (res judicata applies to claims
involving alleged “fraud in the matter on which the decree was rendered” (emphasis
omitted) (quoting United States v. Throckmorton, 98 U.S. 61, 68 (1878))); accord In
re Estate of Delaney, 819 A.2d at 981 n.4 (describing “intrinsic fraud” as “fraud
which arises within the court proceeding and concerns an issue that speaks directly
to a determination on the merits”). We have explained that fraud is intrinsic to the
litigation where, for example, a party alleges “undue influence [or] fraud in obtaining
[a] will,” In re Estate of Delaney, 819 A.2d at 981 n.4, or where a party withholds 19
information during the litigation that the other party could have used as a defense,
Laufer, 532 A.2d at 134.
The fraud alleged by Ms. Richardson is intrinsic in nature and hence does not
preclude the application of res judicata. Ms. Richardson argues that res judicata
should not apply to her suit because (1) Nationstar—with MWC and the Trustees’
assistance—deceived the Superior Court into believing that Nationstar had standing
by falsely representing that Nationstar was the holder of Ms. Richardson’s
promissory note, (2) MWC and the Trustees falsely asserted to the Superior Court
that the Trustees had been properly appointed, and (3) MWC and the Trustees made
misleading statements to Ms. Richardson about the payoff amount on her loan. But
each of these assertions is about the merits of the underlying foreclosure litigation—
they are not allegations of fraud that “prevent[ed] [Ms. Richardson] from presenting
a case.” In re Estate of Delaney, 819 A.2d at 981 n.4. If MWC and the Trustees are
able to demonstrate privity with Nationstar, res judicata will therefore apply.
C. Privity of the Relevant Parties
For res judicata to apply, the moving party must show that “the party against
whom the [claims are] asserted was a party or in privity with a party in the prior
case.” Calomiris, 3 A.3d at 1190 (quoting Elwell v. Elwell, 947 A.2d 1136, 1140
(D.C. 2008)). Ms. Richardson contends that MWC and the Trustees were not named 20
parties in the foreclosure litigation and have not established that they were in privity
with Nationstar. Based on the record before us, we agree that MWC and the Trustees
did not carry their burden to show that they were in privity with Nationstar. Johnson
v. D.C. Rental Hous. Comm’n, 642 A.2d 135, 139 (D.C. 1994) (“Res judicata is an
affirmative defense that must be pleaded and established by the proponent.”). But
because it is unclear that they cannot do so, we decline to reverse and instead remand.
For a party to be in privity with another, they must be “so identified in
interest . . . that [they] represent[] precisely the same legal right in respect to the
subject matter of the case.” Bell v. Weinstock, Friedman & Friedman, P.A., 285
A.3d 505, 509 (D.C. 2022) (quoting Patton v. Klein, 746 A.2d 866, 870 (D.C. 1999)).
“Traditional categories of privies include ‘those who control an action although not
parties to it . . . ; those whose interests are represented by a party to the action . . . ;
[and] successors in interest.’” Patton, 746 A.2d at 870 (quoting Smith, 562 A.2d at
615).
Before the Superior Court and this court, MWC and the Trustees argued that
they were in privity with Nationstar by virtue of their agency relationship and their
roles as Nationstar’s counsel and trustees on the mortgage. The trial court did not
address the adequacy of these arguments, incorrectly concluding that
Ms. Richardson had conceded the issue of privity by not raising it prior to her motion 21
for reconsideration. In fact, Ms. Richardson rightly argued in opposition to MWC
and the Trustees’ motion to dismiss that their barebones assertions of privity were
insufficient to carry their burden.
As we have often observed, “[a]gents and principals . . . are not ordinarily in
privity with each other.” Bell, 285 A.3d at 509 (quoting D.C. Redevelopment Land
Agency v. Dowdey, 618 A.2d 153, 163 (D.C. 1992)). Rather, “[a] decision on the
merits in an action against the principal is res judicata in a later action against the
agent only ‘if the prior action concerned a matter within the agency.’” Id. (quoting
Major v. Inner City Prop. Mgmt., Inc., 653 A.2d 379, 381 (D.C. 1995)). Moreover,
“[a]lthough attorneys may act as agents of their clients when they act in their role as
counsel,” merely showing that an attorney acted “on behalf of a client or within the
scope of their agency” is not enough to establish privity between the parties. Id. at
511. “Even in such circumstances, the interests of attorneys may not align with their
clients’ and attorneys do not have full control over litigation such that it may be
automatically assumed that they had fully litigated their interests in an earlier
representation of a client.” Id. Thus, to establish privity between an attorney and
their client, the party asserting res judicata must show “a mutuality of legal interests”
between the two parties. Id. at 510. MWC put forward no evidence or argument
before the Superior Court about the “mutuality of [its] legal interests” with
Nationstar. Id. Instead, its only argument as to why privity existed between the two 22
was that it acted as Nationstar’s counsel. Absent any showing as to whether MWC’s
legal interests aligned with Nationstar’s, we cannot conclude that the two were in
privity.
We likewise cannot conclude that privity existed between Nationstar and the
Trustees. Before the Superior Court, the Trustees’ sole argument in favor of privity
was that, by virtue of their role as trustees, there was “no viable inference that [their]
involvement [in the foreclosure case] was anything other than in the context of acting
as agent for the lender, Nationstar.” But the Trustees put forward no evidence or
argument about the scope of their agency relationship with Nationstar, as defined by
the deed of trust or foreclosure order, nor did they directly respond to
Ms. Richardson’s argument that they acted outside of the scope of their agency
relationship in providing her with the incorrect payoff amount.
MWC and the Trustees may very well be able to establish privity with
Nationstar on remand. But because neither MWC nor the Trustees have so far
established privity with Nationstar, the Superior Court erred in concluding on this
record that res judicata applied.
III. Conclusion
We are mindful of the fact that Ms. Richardson has been challenging the 23
propriety of the sale of her home at foreclosure in the courts for almost a decade,
resulting in expenditure of extensive judicial resources in Superior Court and
multiple appeals to this court. See 17-CV-1078, 17-CV-1165, 19-CV-0989,
21-CV-0117. Nevertheless, for the foregoing reasons, we are constrained to reverse
the dismissal of Ms. Richardson’s claims based on res judicata and to remand for
further proceedings consistent with this opinion.9 On remand, we encourage the trial
court to address all issues raised by the parties and to make alternative rulings as
necessary, with the aim of finally resolving all of Ms. Richardson’s claims.
So ordered.
9 In addition to arguing that Ms. Richardson’s claims against them were barred by res judicata, MWC and the Trustees moved to dismiss these claims pursuant to Super. Ct. Civ. R. 12(b)(6). The trial court did not address whether Ms. Richardson had failed to state a claim, however, and in the absence of any briefing to this court on this point, we are unable to consider whether her claims may be dismissed on alternative grounds. Whiting, 230 A.3d at 921 (explaining that this court “may affirm the trial court’s ruling on any basis supported by the record if the appellant will suffer no procedural unfairness”).