U.S. Bank National Ass'n v. Collins-Fuller

831 F.3d 407, 2016 U.S. App. LEXIS 13551, 2016 WL 3997243
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 26, 2016
DocketNo. 15-2415
StatusPublished
Cited by3 cases

This text of 831 F.3d 407 (U.S. Bank National Ass'n v. Collins-Fuller) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Bank National Ass'n v. Collins-Fuller, 831 F.3d 407, 2016 U.S. App. LEXIS 13551, 2016 WL 3997243 (7th Cir. 2016).

Opinion

WOOD, Chief Judge.

In June 2012, U.S. Bank National Association, which has its main office in Ohio, filed this diversity suit asking for a foreclosure judgment on the mortgage of a residential property owned by defendants Heywood Fuller T. and Cheryle Collins-Fuller T., both citizens of Illinois (to whom we refer as the Fullers, since we are not sure what “T” stands for). See 28 U.S.C. § 1332(a)(1). U.S. Bank also named as a defendant KeyBank National Association, which held a junior mortgage on the property. After KeyBank was discovered also to be a citizen of Ohio, the district court granted U.S. Bank’s motion voluntarily to dismiss the case without prejudice because diversity was lacking. See Fed. R. Civ. P. 41(a)(2). The court also dismissed certain claims that the Fullers had asserted against Litton Loan Servicing, LLP, a nonparty, in their answer, because it had not been served with the third-party complaint. The Fullers challenge the dismissal of both U.S. Bank’s complaint and the claims they brought against Litton Loan. Because they cannot overcome the fundamental defects the district court identified, however, we affirm.

I

In 2005 the Fullers signed a promissory note for $232,000 with Fremont Investment & Loan in order to purchase a home in Naperville, Illinois. Around the same time, they executed a mortgage on the property, naming Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee. By 2011, they had stopped making payments on their loan, and so MERS assigned the primary mortgage to U.S. Bank. MERS remained Fremont’s nominee for a junior mortgage Fremont held in the amount of $58,000.

In June 2012, U.S. Bank sued the Fullers in the district court for the Northern District of Illinois for a judgment ordering foreclosure of the mortgage, sale of the house, and related relief under Illinois law. U.S. Bank also named as a defendant Key-Bank National Association, which the couple had designated as the mortgagee when they executed a junior mortgage on the [409]*409property in 2005 securing a loan for $34,533. The complaint asserted that the district court’s subject-matter jurisdiction was based on diversity. See 28 U.S.C. § 1332(a)(1).

The Fullers answered the complaint in June 2013 and asserted, among other things, self-styled “counterclaims” (actually a third-party complaint) against their loan servicer, nonparty Litton Loan Servicing, LLP. Litton Loan, the Fullers charged, had violated the Federal Home Ownership Equity Protection Act (“HOE-PA”), Pub. L. No. 103-325, 108 Stat. 2160 (1994), by fraudulently claiming that they were not making their mortgagé payments, causing them to default on the mortgage. The Fullers never served Litton Loan with the third-party complaint, however, and so it never entered an appearance or otherwise participated in the suit.

After further proceedings, U.S. Bank moved to dismiss the suit voluntarily be- ■ cause it had discovered that KeyBank was a citizen of Ohio. Since U.S. Bank is also a citizen of Ohio, KeyBank’s presence as a defendant destroyed the complete diversity that is necessary for jurisdiction under ■section 1332(a)(1).

In March 2015, the district court granted U.S. Bank’s motion and dismissed the complaint without prejudice to refiling in state court. The Fullers argued that Key-Bank was not a required party, as Federal Rule of Civil Procedure 19(a) uses the term, and should be dismissed (thus preserving diversity jurisdiction). Because of KeyBank’s status as a junior lienholder, the court regarded it as a party that had to be joined if feasible. See id. Because KeyBank would destroy complete diversity, however, the court concluded that join-der was not possible. The court decided that the suit could not proceed in equity and good conscience without KeyBank as a party. See Fed. R. Civ. P. 19(b). The court declined to treat the Fullers’ claims against Litton Loan as “counterclaims” because counterclaims may be brought only against an existing party, see Fed. R. Civ. P. 13(a), (b), and the Fullers had raised their claims against only Litton Loan, a nonparty. To the extent that the Fullers intended to bring third-party claims against Litton Loan under Federal Rule of Civil Procedure 14(a), the court invited them to explain why their failure to serve Litton Loan with their complaint within the requisite 120 days from the filing of the complaint was supported by good cause. See Fed. R. Civ. P. 4(m).

The Fullers responded that health problems, coupled with bad advice from their former counsel, constituted good cause for their failure timely to serve their complaint. The district court was not persuaded and terminated the action. The district court also rejected the Fullers’ attempt to refile the third-party complaint and serve it on Litton Loan.

The Fullers moved for reconsideration of the court’s judgment dismissing their third-party complaint. They took the position that the district court, in dismissing their complaint, had failed to consider the likelihood that the statute of limitations had run on their claims against Litton Loan. The district court denied the motion, explaining that regardless of whether it was construed under Federal Rule of Civil Procedure 59 or 60, the Fullers had not pointed to any change in the law or new facts that would warrant reconsideration, nor had they offered any other compelling reason to alter the judgment.

II

A

On appeal the Fullers mount a two-part challenge to the district court’s decision to grant U.S. Bank’s motion for volun[410]*410tary dismissal based on lack of subject-matter jurisdiction. First, they argue that these proceedings involved violations of federal regulations and statutes- — the HOEPA regulations, 12 C.F.R. §§ 1024, 1026, and the Dodd-Frank Act of 2010, Pub. L. No. 111-203, 124 Stat. 1376-2223 — over which the district court had federal-question jurisdiction. But as the district court recognized, these federal theories cannot provide a basis for federal-question jurisdiction because they were raised by the defendants and do not appear on the face of the plaintiffs well-pleaded complaint. See Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998); City of Chicago v. Comcast Cable Holdings, LLC, 384 F.3d 901, 904 (7th Cir. 2004). U.S. Bank premised its claims only on Illinois state law.

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831 F.3d 407, 2016 U.S. App. LEXIS 13551, 2016 WL 3997243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-national-assn-v-collins-fuller-ca7-2016.