Judges: Per Curiam
Filed: Dec. 15, 2017
Latest Update: Mar. 03, 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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 Argued November 15, 2017 Decided December 15, 2017 Before DIANE P. WOOD, Chief Judge DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 17-1794 PETER ABATANGELO and Appeal from the United States District CALVITA J. FREDERICK, Court for the Northern District Plaintiffs-Appellants, of Illinois, Eastern Division. v. No.
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 Argued November 15, 2017 Decided December 15, 2017 Before DIANE P. WOOD, Chief Judge DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 17-1794 PETER ABATANGELO and Appeal from the United States District CALVITA J. FREDERICK, Court for the Northern District Plaintiffs-Appellants, of Illinois, Eastern Division. v. No. 1..
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NONPRECEDENTIAL DISPOSITION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
Argued November 15, 2017
Decided December 15, 2017
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 17‐1794
PETER ABATANGELO and Appeal from the United States District
CALVITA J. FREDERICK, Court for the Northern District
Plaintiffs‐Appellants, of Illinois, Eastern Division.
v. No. 16 C 8730
WELLS FARGO BANK, N.A., and Matthew F. Kennelly,
DLJ MORTGAGE CAPITAL, INC., Judge.
Defendants‐Appellees.
O R D E R
After losing their homes in separate foreclosure actions in state court,
Peter Abatangelo and Calvita Frederick brought this action under 42 U.S.C. § 1983
against their mortgagees, Wells Fargo Bank and DLJ Mortgage Capital. They demanded
that the foreclosure judgments be set aside and that their homes be returned, on the
premise that an aspect of the foreclosure process in Illinois denied them equal
protection. The district court, relying on the Rooker‐Feldman doctrine, see D.C. Court of
No. 17‐1794 Page 2
Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co. 263 U.S. 413 (1923),
dismissed the case for lack of subject‐matter jurisdiction. We affirm.
The two foreclosure actions before us are wholly unrelated, and so one might
wonder why they appear in the same case. See FED. R. CIV. P. 20(a). Nonetheless,
misjoinder of parties is not a ground for dismissal, and so we can disregard this
problem. See FED. R. CIV. P. 21. In the first case, Wells Fargo filed a foreclosure action
against Abatangelo in Illinois circuit court. That court entered a judgment of foreclosure
and later confirmed the judicial sale of the residence. Abatangelo appealed, and the
Illinois Appellate Court affirmed. Wells Fargo Bank, N.A. v. Abatangelo, 2013 WL 6844090,
at *4 (Ill. App. Ct. 2013). He then filed petitions for rehearing in the appellate court and
for leave to appeal to the Supreme Court of Illinois. Both were denied. In the second
case, DLJ filed a foreclosure action against Frederick. There too the circuit court entered
a judgment of foreclosure and later confirmed the sale of the property. Frederick
appealed, but the appellate court upheld the foreclosure and judicial sale, DLJ Mortg.
Capital, Inc. v. Frederick, 12 N.E.3d 778, 781 (Ill. App. Ct. 2014), and the state supreme
court denied leave to appeal.
Abatangelo and Frederick then jointly filed this federal lawsuit under 42 U.S.C.
§ 1983, each claiming that the appellate court’s decisions in the pertinent foreclosure
action violated the federal constitutional right to equal protection. The Illinois Mortgage
Foreclosure Law concerning judicial sales, 735 ILCS 5/15‐1508(b), they note, restricts
appellate challenges to foreclosure judgments. Those seeking to appeal from a
foreclosure judgment are more restricted than ordinary appellants in Illinois courts,
because the latter are protected by Illinois Supreme Court Rule 301, which provides that
a judgment of a circuit court in a civil case is “appealable as of right.” The distinction,
Abatangelo and Frederick contend, violates the Equal Protection Clause. They asked the
district court to invalidate all of the state‐court decisions in their cases, order the return
of their homes, and dismiss Wells Fargo’s and DLJ’s foreclosure actions.
The district court initially dismissed the case on the basis of claim preclusion.
Plaintiffs moved for reconsideration, but the defendants responded with a request that
the court revise the dismissal to reflect a lack of subject‐matter jurisdiction. The court
granted the defendants’ motion and clarified that it lacked subject‐matter jurisdiction
under the Rooker‐Feldman doctrine. The court added that if the case somehow escaped
the clutches of that doctrine, it would be barred by claim preclusion. It modified the
judgment to show that the dismissal was for lack of jurisdiction, and this appeal
followed.
No. 17‐1794 Page 3
The district court was correct to make this modification. The Rooker‐Feldman
doctrine divests all federal courts except the Supreme Court of subject‐matter
jurisdiction to adjudicate suits by plaintiffs who effectively seek review of an adverse
state‐court judgment. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005); Iqbal v. Patel, 780 F.3d 728, 729 (7th Cir. 2015).
Recognizing that they have a problem, the plaintiffs urge that Rooker‐Feldman
does not apply to their case because they are not “ask[ing] this court to review and
reverse” the foreclosure judgments. But that is precisely what their complaint asks the
district court to do—and much more. And they explicitly ask this court to “send the
cases back to the Illinois Appellate Court.” Their theory is that the state appellate court
denied them equal protection by limiting its review of the foreclosure judgments. It is
impossible to grant relief from this perceived harm without “disregarding or effectively
vacating” the state‐court judgments. See Mains v. Citibank, N.A., 852 F.3d 669, 677 (7th
Cir.), cert. denied, 86 U.S.L.W. 3128 (U.S. Oct. 2, 2017) (No. 17‐89). The plaintiffs’ lawsuit
seeks reversal of the state appellate‐court decisions, as well as the circuit‐court
decisions. Avoiding the use of the word “reverse” does not change anything. See id. at
675 (“Claims that directly seek to set aside a state-court judgment are de facto appeals
that trigger the doctrine.”); Landers Seed Co. v. Champaign Nat’l Bank, 15 F.3d 729, 733
(7th Cir. 1994) (explaining that district court lacks subject‐matter jurisdiction to consider
constitutional challenge if granting relief effectively would require invalidating state
appellate decision).
The plaintiffs also seem to misunderstand the exception to the Rooker‐Feldman
doctrine that allows plaintiffs to raise claims in federal court if they “were not afforded
a ‘reasonable opportunity’ to raise their claims in state court.” Gilbert v. Ill. State Bd. of
Educ., 591 F.3d 896, 901–902 (7th Cir. 2010). They argue that their constitutional claims
did not arise until the appellate court issued its decisions, and so they did not have an
opportunity to raise them in state court. That is not correct. In Gilbert, this court
concluded that the plaintiff had a reasonable opportunity to litigate his constitutional
claims, which that plaintiff attributed to the appellate court’s decision, through a
petition for rehearing or an appeal to the state supreme court. Id. at 902. The same is
true here. See Hale v. Comm. on Character and Fitness, 335 F.3d 678, 682–83 (7th Cir. 2003)
(invoking Rooker‐Feldman when state‐court litigant had opportunity to file a petition for
a writ of certiorari). Both plaintiffs petitioned for rehearing in the appellate court and
sought leave to appeal to the Supreme Court of Illinois. Indeed, the plaintiffs expressly
note that they raised “the issue of the [c]onstitutional violation” in at least Frederick’s
petition for rehearing. As the district court noted, “[t]hese allegations establish both
No. 17‐1794 Page 4
plaintiffs’ opportunity to assert the constitutional issue once it was presented[,] and
either their failure to do so or the rejection of their contention.”
The plaintiffs take the position that they did not have a reasonable opportunity
to raise their constitutional claims in state court because their petitions for rehearing
and for review by the supreme court were denied. But, as in Gilbert, the denials of the
plaintiffs’ petitions do not mean they lacked the opportunity to raise their constitutional
claim. See Gilbert, 591 F.3d at 902. Moreover, if the constitutional claims did not arise
until the appellate court gave its reasons for ruling against them, then they could have
appealed to the supreme court as of right under Illinois Supreme Court Rule 317. See
Gilbert, 591 F.3d at 902 (explaining that Rule 317 authorizes appeal as of right if
constitutional claim arises for the first time as result of appellate decision). The plaintiffs
bypassed those opportunities, as well as the opportunity to petition for review in the
Supreme Court of the United States. See U.S. SUP. CT. RULE 13; Remer v. Burlington Area
Sch. Dist., 205 F.3d 990, 996 (7th Cir. 2000) (“[N]o matter how erroneous or
unconstitutional the state court judgment may be, the Supreme Court of the United
States is the only federal court that could have jurisdiction to review a state court
judgment.”) In short, plaintiffs had all the opportunity to raise their federal claims that
was required.
In their reply brief, the plaintiffs reverse course to differentiate themselves from
the plaintiff in Gilbert. They now contend that they could not raise their constitutional
claims in the state circuit court because the restrictions on challenging a foreclosure
judgment after confirmation of a judicial sale are the result of the Supreme Court of
Illinois’s ruling in Wells Fargo Bank, N.A. v. McCluskey, 999 N.E.2d 321 (Ill. 2013), and not
the appellate court’s rulings in their particular cases. But that is not what they argued in
their opening brief, where they insisted that the McCluskey decision did not prevent the
appellate court from broadening the scope of its review.
McCluskey holds that the Illinois Mortgage Foreclosure Law displaces the more
liberal Illinois Code of Civil Procedure and provides the rules for adjudicating attacks
on a judgment of foreclosure after a judicial sale has been confirmed. McCluskey, 999
N.E.2d at 323. The Illinois Appellate Court in these cases cited McCluskey to support its
conclusion that, in challenging the foreclosure proceedings, both plaintiffs were limited
to identifying defects in the judicial sale rather than seeking to overturn the underlying
judgment of foreclosure. Abatangelo, 2013 WL 6844090, at *3; Frederick, 12 N.E.3d at 781.
This was a new ruling, plaintiffs say, and thus McCluskey is the source of their harm and
they could not have appealed as of right under Illinois Supreme Court Rule 317.
No. 17‐1794 Page 5
This argument fails too. Although McCluskey was not decided until after the
plaintiffs had filed their state‐court appeals, they were not harmed directly by that
decision. Instead, any harm they suffered flowed from the appellate court’s application
of the opinion and the preexisting foreclosure statute. And either way, the notion that
McCluskey is the source of their harm is nonsensical in light of what the plaintiffs now
say they seek: a “remand” to the Illinois Appellate Court so that it can start all over
again. If such a transfer could occur (and we cannot imagine how), the state appellate
court would be bound by a decision of the state supreme court. See Vill. of Deerfield v.
Greenberg, 550 N.E.2d 12, 16 (Ill. App. Ct. 1990). Despite their arguments to the contrary,
the plaintiffs could have raised the scope of their ability to appeal in petitions for leave
to appeal to the Supreme Court of Illinois and in petitions for writs of certiorari filed
with the Supreme Court of the United States.
Rooker‐Feldman to one side, we cannot resist adding that underneath all of this is
an obviously frivolous complaint. State action is an element of any claim under § 1983.
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009);
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). Private banks are normally not
state actors, London v. RBS Citizens, N.A., 600 F.3d 742, 746–748 (7th Cir. 2010), and
plaintiffs have not offered any theory that could overcome this gaping hole in their case.
One way or the other, this case was doomed. We AFFIRM the judgment of the district
court.