Bobino v. PNC Bank National Association

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTOPHER BOBINO, §
Plaintiff, §
§
v. § CIVIL ACTION NO. 4:25-cv-04202
§
PNC BANK NA, §
Defendant. §
MEMORANDUM AND RECOMMENDATION
This case, in which Plaintiff is proceeding pro se, involves a consumer line of
credit and is before the Court on Defendant’s Motion to Dismiss.1 ECF 8. Having
considered the parties’ submissions and the law, the Court recommends that
Defendant’s Motion be GRANTED.
I. Background
On November 21, 2023, Plaintiff visited the PNC Bank located at 333 South
Fry Road, Katy, Texas 77450 to apply for a $25,000 line of credit. ECF 1 at 2; ECF
8-3 at 76. PNC Bank denied his application. ECF 8-1 at 3; Bobino v. PNC Bank
N.A., Civil Action no. 4:25-cv-1363 (Bobino I), ECF 1-1 at 27-28. On April 17,
2024, Plaintiff instituted a demand for arbitration under the Federal Arbitration Act,
claiming identity theft and forgery relating to his November 21, 2023 application for
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 13.
United States District Court
Southern District of Texas
ENTERED
June 01, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 1 of 11

2
a line of credit. Id.; ECF 8-3 at 98. The Arbitrator, Bertrand C. Moser, denied
Plaintiff’s claims on November 11, 2024. ECF 8-1. On January 3, 2025, Plaintiff
filed a Petition to Vacate Arbitration Award in the 61st District Court for Harris
County, Texas. Bobino I, ECF 1-1 at 9. Defendant removed the case to federal court
where it was assigned to United States District Judge Keith P. Ellison. Id. ECF 1.
Judge Ellison confirmed the Arbitration Award on August 6, 2025 (Confirmation
Order). Id. ECF 22
Plaintiff filed this federal case (Bobino II) on September 3, 2025. ECF 1.
Plaintiff’s Complaint alleges the same claims he raised in the arbitration proceeding,
i.e., that he did not understand the application for a line of credit he signed on
November 21, 2023 and PNC Bank’s employee, Janiele Harvey, obtained his
signature by negligence, deception, forgery, and “online impersonation.” Id. at 2-4.
Plaintiff alleges Defendant’s actions violate various provisions of the Texas Penal
Code. Id. Plaintiff seeks $1,000,000.00 in non-economic damages and
$50,000,000.00 in exemplary damages. Id. at 4. Defendant moves to dismiss this
case on grounds res judicata based on Bobino I.
II. Rule 12(b)(6) Standards
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 2 of 11

3
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court accepts
all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff. Alexander v. AmeriPro Funding, Inc., 48 F.3d 68, 701 (5th Cir. 2017)
(citing Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004)). However, the court does not apply the presumption of truth to
conclusory statements or legal conclusions. Iqbal, 556 U.S. at 678-79.
Generally, the court may consider only the allegations in the complaint and
any attachments thereto when ruling on a Rule 12(b)(6) motion. If a motion to
dismiss refers to matters outside the pleading it is more properly considered as a
motion for summary judgment. See FED. R. CIV. P. 12(d). However, under Rule
12(b)(6) the court may take judicial notice of public documents and may also
consider documents a defendant attaches to the motion to dismiss if the documents
are referenced in the complaint and central to plaintiffs’ claims. See Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 499 (5th Cir. 2000); King v. Life Sch., 809 F. Supp. 2d 572, 579 n.1
(N.D. Tex. 2011).
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 3 of 11

4
Defendant attached records from the prior arbitration proceeding, which in
turn was confirmed in Bobino I, to its Motion to Dismiss. The Court may take
judicial notice of these records for the purpose of ruling on Defendant’s Motion to
Dismiss based on res judicata. See Anderson v. Wells Fargo Bank, N.A., 953 F.3d
311, 314 (5th Cir. 2020) (holding that res judicata can be raised in a motion to
dismiss where “the res judicata bar is apparent from the complaint and judicially
noticed facts and the plaintiff fails to challenge the defendant's failure to plead it as
an affirmative defense.” (citations omitted)); Stone v. Louisiana Dep’t of Revenue,
590 F. App’x 332, 335-36 (5th Cir. 2014) (holding “[d]ismissal under Rule 12(b)(6)
on res judicata grounds is appropriate when the elements of res judicata are apparent
on the face of the pleadings” (citations omitted)).
III. Analysis
Defendant seeks dismissal of Plaintiff’s claims with prejudice based on the
res judicata effect of Bobino I. In the interests of judicial efficiency, the Court sua
sponte raises additional grounds for dismissal. The court possesses the inherent
authority to dismiss an action sua sponte without motion by a defendant as long as
the procedure is fair. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988)
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)); See Gaffney v. State
Farm Fire and Cas. Co., 294 Fed. App’x 975, 977 (5th Cir. 2008) (recognizing
inherent authority to dismiss sua sponte for failure to state a claim as long as the
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 4 of 11

5
procedure employed is fair). Generally, the sua sponte dismissal procedure is fair if
the plaintiff had notice of the court’s intention to dismiss and an opportunity to
respond. Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014)
(“fairness in this context requires both notice of the court's intention and an
opportunity to respond” (citation omitted)); Anokwuru v. City of Houston, 990 F.3d
956, 967 (5th Cir. 2021). The procedure for sua sponte dismissal in this case is fair
because this Memorandum and Recommendation notifies Plaintiff of the
recommendation for dismissal and allows Plaintiff 14 days to file an objection
explaining why his case should be allowed to proceed. See Anokwuru, 990 F.3d at
967 (plaintiff that filed objections to magistrate judge’s recommendation
undoubtedly had notice and opportunity to respond before dismissal).
A. Plaintiff’s Texas Penal Code claims should be dismissed.
Plaintiff purports to assert claims for violation of the Texas Penal Code.
“There is no private cause of action under the Texas Penal Code.” Brown v.
Splendora ISD, No. 4:24-CV-4895, 2026 WL 936502, at *8 (S.D. Tex. Apr. 7, 2026)
(citations omitted); see also Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.—
Tyler 1996, writ denied) (holding “the Penal Code does not create private causes of
action”). Therefore, the Court recommends that Plaintiff’s claims under Texas Penal
Statutes be dismissed with prejudice for failure to state a claim.
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 5 of 11

6
B. Plaintiff fails to state claim for relief under Texas Common Law.
In order to state a claim Plaintiff must plead sufficient facts to support a
plausible claim for relief. Plaintiff’s Complaint alleges only threadbare facts and
legal conclusions. In support of his negligence claim, Plaintiff alleges PNC
employee Janiele Harvey breached her duty under Texas Penal Code § 6.03(c) when
she “denied me transparency and a meaningful opportunity to read and understand a
writing that needed my approval before its completion.” ECF 1 at 2. For his
deception claim under Texas Penal Code § 32.46(a)(1), Plaintiff alleges that Harvey
“intentionally used my identifying information without my effective consent to sign
a document of pecuniary interest.” Id. Plaintiff alleges Harvey committed forgery
in violation of Texas Penal Code § 32.21(a)(A)(i) when she knowingly “completed,
authenticated and submitted a writing (the $25,000.00 line of credit application) that
purported to be an act by me, without my authorization.” Id. Finally, Plaintiff
alleges that Harvey used Plaintiff’s name to communicate with Experian, thereby
committing online impersonation in violation of Texas Penal Code § 33.07(a)(2).
Id.
However, Plaintiff admits in his Complaint that he went to the bank on
November 21, 2023 to inquire about a $25,000.00 line of credit. The Complaint does
not allege that Plaintiff told Harvey not to submit the credit application, nor does it
allege that Plaintiff did not sign the application. In short, Plaintiff fails to allege a
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 6 of 11

7
specific wrongful act by Harvey. Although Plaintiff now claims that Harvey secured
his signature by deception and committed forgery, his own allegations and
admissions demonstrate that he cannot plausibly allege a claim for deception or
forgery. Thus, Plaintiff’s Complaint fails to meet the pleading standards of Iqbal
and Twombly. The Court recommends that Plaintiff’s Complaint be dismissed with
prejudice for failure to state a plausible claim for relief.
C. Plaintiff’s claims are barred by res judicata.
“Claim preclusion, or res judicata, bars the litigation of claims that either have
been litigated or should have been raised in an earlier suit.” Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). Under federal and Texas
law, res judicata applies if: (1) the parties are identical or in privity; (2) the judgment
in the prior action was rendered by a court of competent jurisdiction; (3) the prior
action was concluded by a final judgment on the merits; and (4) the same claim or
cause of action was involved in both actions. Test Masters, 428 F.3d at 571; Amstadt
v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). A “transactional test” is used
to determine whether a subsequent action involves the same claim or cause of action.
Under this test, “[a] prior judgment's preclusive effect extends to all rights of the
plaintiff with respect to all or any part of the transaction, or series of connected
transactions, out of which the original action arose.” Test Masters, 428 F.3d at 571;
see also Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 7 of 11

8
Arbitration proceedings, like lawsuits, can have preclusive effect. Murchison Cap.
Partners, L.P. v. Nuance Commc'ns, Inc., 625 F. App'x 617, 620 (5th Cir. 2015).
Plaintiff does not contest the existence of the usual elements of res judicata in
this case: (1) the parties in this case and in Bobino I are identical; (2) the United
States District Court for the Southern District of Texas had jurisdiction over
Plaintiff’s Petition to Vacate Arbitration Award in Bobino I; (3) Judge Ellison’s
August 6, 2025 Order, entered on August 7, 2025, was a final judgment that disposed
all parties and all claims in Bobino I; and (4) Plaintiff asserted claims in the
arbitration that arise out of the same transaction as the claims he asserts in this case.
Instead, Plaintiff contends res judicata does not apply because the arbitrator did not
have jurisdiction over the dispute and Judge Ellison confirmed that ruling. See ECF
9; ECF 20. In essence, Plaintiff argues that the Arbitration Award is void and
therefore the Confirmation Order by Judge Ellison cannot be given prelusive effect.
The Arbitrator made three findings: (1) an arbitrator does not have jurisdiction
to adjudicate disputes unless the parties have agreed to arbitrate. Here, “[t]here was
no contract between the bank and Mr. Bobino for a line of credit. Therefore, there
could be no arbitration clause in a contract that did not exist;” (2) Plaintiff did not
present any evidence of exactly what the bank did wrong and his requests for
discovery were a “fishing expedition;” and (3) Plaintiff did not show he suffered any
damages. ECF 8-1. The Bobino I court rejected all of Plaintiff’s arguments to vacate
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 8 of 11

9
the Arbitration Award. ECF 8-4. The Confirmation Order specifically upholds the
Arbitrator’s determination that “no contractual relationship existed between the
parties concerning the line of credit,” and that there is “no evidence that Plaintiff
suffered any compensable harm from the denial of his credit application.” Id. at 6.
In the absence of an agreement to arbitrate “any disputes are left for resolution
by the judicial system,” but in this case Plaintiff initiated the arbitration and
advocated in favor of the arbitrator’s jurisdiction (both in the arbitration and before
Judge Ellison). ECF 8-2 at 7 (Plaintiff’s argument in his Petition to Vacate that he
has a valid arbitration agreement with PNC); ECF 8-4 at 5 (stating that Plaintiff
sought to vacate the Arbitral Award because contrary to the Arbitrator’s ruling
“[r]egarding the scope of the arbitration agreement, Plaintiff maintains that it covers
all disputes with PNC”). Thus, the arbitrator dismissed Plaintiff’s claims on the
merits. ECF 8-1 at 2-3.
“A claimant may not voluntarily submit his claim to arbitration, await the
outcome, and, if the decision is unfavorable, then challenge the authority of the
arbitrators to act.” Weinberg v. Silber, 140 F. Supp. 2d 712, 718 (N.D. Tex. 2001)
(quoting Moseley, Hallgarten, Estabrook & Weeden, Inc. v. Ellis, 849 F.2d 264, 269
(7th Cir.1988)). Due to his prior positions taken in the arbitration and before the
federal court, Plaintiff is now judicially estopped from arguing the Arbitration
Award is void due to lack of jurisdiction. See Anadarko Petroleum Corp. v.
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 9 of 11

10
Alternative Env't Sols., Inc., 169 F.4th 542, 550 (5th Cir. 2026) (holding that
“Judicial estoppel has three elements: (1) The party against whom it is sought has
asserted a legal position that is plainly inconsistent with a prior position; (2) a court
accepted the prior position; and (3) the party did not act inadvertently.” (citation
omitted)).
The Arbitration Award was confirmed by the United States District Court, a
court of competent jurisdiction, converting the award into a final judgment from a
federal court entitled to res judicata effect. If Plaintiff disagreed with the
Confirmation Order, his remedy was to file an appeal to the Fifth Circuit. He did
not do so. Therefore, the Court recommends that Plaintiff’s claims be dismissed in
their entirety due to the res judicata effect of Bobino I.
IV. Conclusion and Recommendation
For the reasons stated above, the Court recommends that Defendant’s Motion
to Dismiss (ECF 8) be GRANTED and this case be dismissed in its entirety with
prejudice.
The Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 10 of 11

11
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on June 01, 2026, at Houston, Texas.
Case 4:25-cv-04202 Document 27 Filed 06/01/26 in TXSD Page 11 of 11