Richardson v. McCabe, Weisberg & Conway, LLC

Notice: This opinion is subject to formal revision before publication in the Atlantic

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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”).