Judges: PerCuriam
Filed: Jul. 13, 2015
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted June 26, 2015* Decided July 13, 2015 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 14-3707 WENDY B. ADELSON, Appeal from the United States Plaintiff-Appellant, District Court for the Northern District of Illinois, Eastern Division. v. No. 07 C 7208 OCWEN FINANCIAL CORPORA
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted June 26, 2015* Decided July 13, 2015 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 14-3707 WENDY B. ADELSON, Appeal from the United States Plaintiff-Appellant, District Court for the Northern District of Illinois, Eastern Division. v. No. 07 C 7208 OCWEN FINANCIAL CORPORAT..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 26, 2015*
Decided July 13, 2015
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐3707
WENDY B. ADELSON, Appeal from the United States
Plaintiff‐Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 07 C 7208
OCWEN FINANCIAL
CORPORATION, et al., Charles R. Norgle,
Defendants‐Appellees. Judge.
O R D E R
Eight years ago Wendy Adelson, a Michigan homeowner, sued Ocwen Loan
Servicing, LLC, and other companies involved with her home mortgage in a Michigan
court; her complaint raised only state‐law claims. She soon found herself litigating in
Chicago, however, after the defendants (for simplicity we disregard all but Ocwen and
HSBC Bank USA) removed the suit to federal court in Michigan and then engineered its
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is therefore submitted on the briefs and record. See FED. R.
APP. P. 34(a)(2)(C).
No. 14‐3707 Page 2
transfer to the Northern District of Illinois, the site of multidistrict litigation involving a
host of claims against Ocwen. Since then Adelson’s suit, which principally alleges that
Ocwen’s irregular handling of her loan resulted in an unlawful foreclosure action, has
been dormant. The reason for the lack of action appears to be because the presiding
judge believes that Adelson’s suit was extinguished by another of the MDL cases, a
successful class action in which she was a class member. This was incorrect, as we
explain below. Adelson, trying to get her suit back on track, filed what she labeled a
motion under Federal Rule of Civil Procedure 60(b). The district judge denied her
motion, prompting this appeal. But there is no final judgment in her individual lawsuit,
and so we dismiss the appeal.
I
Adelson bought her home in Lake Orion, Michigan, in 2006 with financing from
Sebring Capital Partners, a now‐defunct residential‐mortgage lender. Shortly thereafter
Sebring closed its doors, but not before it assigned Adelson’s note and mortgage to
another financial institution. Adelson got wind of the assignment when Ocwen entered
the picture and told her that it would be collecting future payments. According to
Adelson, Ocwen refused to disclose the name of the institution now holding her note
and mortgage. Frustrated by the lack of transparency, Adelson ceased making
payments, and within months HSBC showed its hand by initiating foreclosure
proceedings.
Adelson hired counsel and sued Ocwen and HSBC. Her state‐court complaint
includes a number of claims, all arising under Michigan law, including breach of
contract, wrongful foreclosure, violations of consumer‐protection statutes, and
intentional infliction of emotional distress. The complaint attributes the loan arrearage
to Ocwen’s malfeasance and alleges that HSBC breached the loan and mortgage
contracts by moving to foreclose. As relief her suit seeks primarily to enjoin the
foreclosure proceeding and quiet title to her home.
Ocwen and HSBC, invoking the diversity jurisdiction, removed the suit to the
Eastern District of Michigan. After filing an answer, the defendants sought transfer to
Chicago, where three years earlier the Judicial Panel on Multidistrict Litigation had
consolidated for pretrial proceedings numerous lawsuits (the number eventually
reached 93) accusing Ocwen of violating federal or state consumer‐protection statutes.
Adelson’s suit was assigned case number 07 C 7208 in the Northern District of Illinois,
where she hired local counsel. Judge Norgle, who presided over the MDL, denied
No. 14‐3707 Page 3
Adelson’s motion to remand the suit to Michigan state court. That would be the last
entry on the docket for the next six years.
Meanwhile, in another of the MDL suits against Ocwen, the plaintiffs sought
class certification. The class complaint’s lengthy list of claims all centered on Ocwen’s
alleged practice of charging and collecting late fees even when loan payments were
timely or the collection of late fees was statutorily barred. That litigation, case number
04 C 2714, did not involve HSBC or the other defendants in Adelson’s state suit other
than Ocwen and its affiliates. Adelson was a member of the putative class.
The class action was certified and settled in late 2010. Under the terms of the
settlement, which is governed by Illinois contract law, Ocwen agreed to forgive some of
the late fees it had charged. In exchange, class members released all claims against
Ocwen “arising out of, or related to, the facts and/or claims alleged in the MDL Actions
arising out of state or federal law.” (The settlement agreement defines “MDL Actions”
to include Adelson’s lawsuit.) The release expressly excepts “statutory or common law
rights against foreclosure, whether asserted in the form of a claim or defense.” Adelson
did not opt out or otherwise object to the settlement, and so in early 2012 she received
from Ocwen a credit for late fees previously charged to her loan account. Although
Adelson’s acquiescence in the class settlement had the effect of releasing some (but not
all) of the claims in her individual lawsuit, no entry to that effect was made on the
docket in No. 07 C 7208.
Three years later Adelson filed under No. 07 C 7208 the “Rule 60(b) motion” that
precipitated this appeal. In that motion, she sought to vacate, solely as to her, the
judgment in the class action, a step that she apparently believes is necessary before she
is entitled to move forward with her individual suit against Ocwen and HSBC.
(According to counsel for Ocwen, this motion came “only after foreclosure proceedings
were restarted.”) Adelson asserted that she had not received notice of the settlement, an
omission for which she faulted her attorney. Only Ocwen responded to this motion. The
company implicitly seconded Adelson’s suspicion that her individual suit against it was
ended by the class settlement. Ocwen opposed the motion on the ground that Adelson’s
allegations did not warrant relief under Rule 60(b).
The district court denied the motion. Adelson’s assertion of excusable neglect
under Rule 60(b)(1), the court reasoned, is untimely. The court also rejected Adelson’s
contention that she had established “extraordinary circumstances” under Rule 60(b)(6).
The court then declared that the release included in the class settlement precludes
No. 14‐3707 Page 4
further litigation of “all claims that were or could have been brought against
Defendants based on the allegations in her complaint.”
II
Adelson filed a notice of appeal from this ruling, asserting that the district court
abused its discretion in denying her “Rule 60(b) motion.” Before we can evaluate the
court’s ruling, however, we must ensure that our jurisdiction is secure, an obligation we
bear even if the parties do not bring the issue to our attention. See Minn. Life Ins. Co. v.
Kagan, 724 F.3d 843, 846 (7th Cir. 2013).
As we assess our jurisdiction, we are confronted first with the question whether
to treat Adelson’s submission as a motion in the class action, or as one in her individual
lawsuit. The parties have paid little attention to that detail. They focus their contentions
instead on facts relating to the class settlement, not on the facts of Adelson’s underlying
lawsuit. At the same time, the parties have consistently acted as though Adelson’s
motion was filed in her individual suit. That motion bears the name and docket number
of the lawsuit originating in Michigan state court, and none of the defendants—in
particular those who were not part of the class action—ever hinted that the case name
or number is incorrect. Neither did the district court question the form of the motion. In
this court the appellees—who, Adelson points out, purport to be all of the defendants
she named in her state complaint—frame their jurisdictional statement as if this appeal
is from the denial of a postjudgment motion in Adelson’s individual suit.
We see no reason not to take Adelson’s motion at face value, especially since its
form went unchallenged by the defendants and the district court. Cf. Wheeler v. Talbot,
770 F.3d 550, 552 (7th Cir. 2014). This approach makes good procedural sense: By its
own terms Rule 60(b) applies only to parties and their legal representatives. Absent
class members such as Adelson are treated, with limited exceptions inapplicable here,
as non‐parties to a class action. See Devlin v. Scardaletti, 536 U.S. 1, 9–10 (2002). In
accordance with that treatment, it has long been the general rule that some form of
participation in the litigation is necessary before an unnamed class member can seek
relief under Rule 60(b). See In re Four Seasons Sec. Litig., 525 F.3d 500, 504 (10th Cir.
1975); 6A FED. PROC., L. ED. § 12:358 (Westlaw database updated 2015); cf. Devlin, 536
U.S. at 9, 14 (holding that absent class member who objects to class settlement may
appeal only “the District Court’s decision to discard his objections”). Neither party
contends that Adelson participated in the class litigation, or that there is any other
reason to disregard Rule 60(b)’s plain terms. If Adelson wants now to exclude herself
No. 14‐3707 Page 5
from the class settlement, she would need to take different procedural steps. For
example, she might consider a motion under Rule 6(b) to extend the time to opt out.
See FED. R. CIV. P. 6(b); In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 129–30 (2d
Cir. 2011).
Unless there is a final judgment in Adelson’s individual lawsuit, it was
premature to invoke Rule 60. Although an appeal from the denial of a motion under
Rule 60(b) may be taken separately from an underlying decision, the rule allows a
district court to relieve a party only from a final decision. See Mintz v. Caterpillar Corp.,
No. 14‐1881, 2015 WL 3529396, at *5 (7th Cir. June 5, 2015). The defendants hint that
they believe that the class settlement had the effect of barring Adelson’s individual suit
in toto; Adelson (who is acting pro se) appears to share that assumption. And well she
might: the district court’s order denying Adelson’s motion conveys the same message.
But that message cannot withstand scrutiny. The defendants and the district
court did not cite any authority for their understanding that the class settlement
released all defendants from all claims in Adelson’s lawsuit. The class settlement is a
written document that we may interpret for ourselves. See Stanek v. St. Charles Cmty.
Unit Sch. Dist. #303, 783 F.3d 634, 642 (7th Cir. 2015). That document does not foreclose
entirely the claims in Adelson’s individual suit, even though it purports to resolve some
of them. As to Ocwen, Adelson appears to have abandoned a significant portion of her
claims by not timely opting out of the settlement. But the release expressly exempts
claims asserted in opposition to foreclosure, and Ocwen has never developed any
argument that all of Adelson’s claims against the company (in particular those for
wrongful foreclosure and breach of contract) fall outside this exemption. Moreover, as
we have noted, Adelson’s state complaint principally sought to stop the mortgage
foreclosure. The foreclosure action was brought by HSBC and another defendant named
in Adelson’s state complaint. Neither is a defendant in the class action. It is
inconceivable that settling the class claims against Ocwen extinguished Adelson’s suit
against other defendants not involved in the class action and not affiliated with Ocwen.
At a minimum, Adelson’s entire suit continues to pend against the remaining
defendants.
We thus lack appellate jurisdiction. The judgment in the class action does not
fully resolve Adelson’s individual suit and thus essentially functions much like an order
authorizing an amended pleading that dismisses some but not all claims, see FED. R.
CIV. P. 15(a); Taylor v. Brown, No. 12‐1710, 2014 WL 9865341, at *5 (7th Cir. June 2, 2015),
or an order dismissing some but not all parties to a suit without an accompanying
No. 14‐3707 Page 6
certification under Federal Rule of Civil Procedure 54(b), see Morton Int’l, Inc. v. A.E.
Staley Mfg. Co., 460 F.3d 470, 480 n.12 (3d Cir. 2006), or partial summary judgment, see
FED. R. CIV. P. 56(a). No matter how Adelson labeled her motion, in substance she was
trying to move her stalled lawsuit forward; she was not seeking review of a supposed
final judgment in that action. The case involving Ocwen and its codefendants that the
court transferred from Michigan to the Northern District of Illinois remains pending,
and the parties and the district court should get about the business of resolving it,
whether by commencing discovery and motion practice in Chicago, or by suggesting to
the JPML that the case be returned to the Eastern District of Michigan. See 28 U.S.C.
§ 1407(a); M.D.L. Rules 10.1(b), 10.3. The litigation is unfinished, and the district court
will have to decide how much or how little is left of Adelson’s claims against Ocwen.
APPEAL DISMISSED.