Judges: Per Curiam
Filed: Apr. 24, 2019
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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 Submitted April 23, 2019* Decided April 24, 2019 Before MICHAEL S. KANNE, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY C. BARRETT, Circuit Judge No. 18-2429 DEUTSCHE BANK NATIONAL TRUST Appeal from the United States District CO., as Trustee for GSAA Home Equity Court for the Northern District of Illinois, Trust 2006-18, Asset-Ba
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 April 23, 2019* Decided April 24, 2019 Before MICHAEL S. KANNE, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY C. BARRETT, Circuit Judge No. 18-2429 DEUTSCHE BANK NATIONAL TRUST Appeal from the United States District CO., as Trustee for GSAA Home Equity Court for the Northern District of Illinois, Trust 2006-18, Asset-Bac..
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NONPRECEDENTIAL DISPOSITION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 April 23, 2019*
Decided April 24, 2019
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18‐2429
DEUTSCHE BANK NATIONAL TRUST Appeal from the United States District
CO., as Trustee for GSAA Home Equity Court for the Northern District of Illinois,
Trust 2006‐18, Asset‐Backed Certificates, Eastern Division.
Series 2006‐18,
Plaintiff‐Appellee, No. 13 CV 2599
v. Virginia M. Kendall,
Judge.
TRACY CORNISH,
Defendant‐Appellant.
O R D E R
Tracy Cornish appeals the judgment foreclosing the mortgage on her home,
confirming its sale, and ordering her eviction. She argues that an earlier foreclosure
action in state court deprived the district court of jurisdiction or, alternatively, that res
judicata barred the court from deciding the case. Because the district court was not
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐2429 Page 2
asked to overturn the earlier state‐court decision, and that decision was not a final
judgment, we affirm.
The judgment in this case follows a lengthy series of judicial proceedings related
to Cornish’s home and mortgage. Cornish’s mortgage had been assigned to Avelo
Mortgage, which sued for foreclosure in state court in 2007. The parties agreed to
dismiss the case in 2008. Avelo sued for a foreclosure judgment again in 2008; the state
court dismissed that action for want of prosecution in 2010.
Then in 2013, Avelo assigned Cornish’s mortgage to an asset‐backed securities
trust administered by Deutsche Bank National Trust Company. (Cornish initially
disputed the validity of the assignment, but that issue is not part of this appeal.)
Deutsche Bank then filed this foreclosure action in federal court later in 2013, invoking
jurisdiction based on diversity of citizenship. Cornish moved to dismiss the complaint
for lack of subject‐matter jurisdiction, arguing in part that a foreclosure action was
pending in state court. The district court concluded instead that res judicata barred the
suit, explaining that the Illinois court’s 2010 dismissal of the foreclosure action was a
final judgment under state law because Avelo did not refile its suit within one year or
within the remaining period allowed by the statute of limitations.
Deutsche Bank moved to reconsider, arguing that the statute of limitations had
not yet run, and therefore it was free to refile the dismissed case. The district court
granted Deutsche Bank’s motion and reinstated the case. The district court later entered
summary judgment in favor of Deutsche Bank; in 2018, the court finally entered an
order approving the sale of Cornish’s property at auction. Cornish appeals.
Cornish first contends that res judicata barred Deutsche Bank’s foreclosure suit.
We apply Illinois law of res judicata (claim preclusion) to determine the effect of the
Illinois court’s judgment. Baek v. Clausen, 886 F.3d 652, 660 (7th Cir. 2018). Res judicata
requires: (1) a final judgment on the merits by a court of competent jurisdiction; (2) an
identity of causes of action; and (3) identical parties or privies. Hudson v. City of Chicago,
889 N.E.2d 210, 213 (Ill. 2008).
Here, there was not a final judgment in Avelo’s state‐court foreclosure action
against Cornish. In Illinois, a dismissal for want of prosecution is a final judgment only
when the time period for refiling the action expires. S.C. Vaughan Oil Co. v. Caldwell,
Troutt & Alexander, 693 N.E.2d 338, 344 (Ill. 1998). Under the savings statute, a plaintiff
may refile the action within the remainder of the applicable statute of limitations.
735 ILCS § 5/13–217. Here, the statute of limitations for a mortgage foreclosure case is 10
No. 18‐2429 Page 3
years. 735 ILCS § 5/13‐206; Taylor, Bean, & Whitaker Mortgage Corp. v. Cocroft, 106 N.E.3d
379, 393 (Ill. App. Ct. 2018). Deutsche Bank thus had 10 years from Cornish’s alleged
default date of December 27, 2006 to refile for foreclosure. It timely filed this case on
April 3, 2013.
Cornish insists that this reading of Illinois law is incorrect because under Illinois
Supreme Court Rule 273, involuntary dismissals generally are adjudications on the
merits. But the Illinois Supreme Court has interpreted this rule to exclude dismissals for
want of prosecution. See Flores v. Dugan, 435 N.E.2d 480, 481 (Ill. 1982). We will not
contradict it on this issue. See Yassan v. J.P. Morgan Chase & Co., 708 F.3d 963, 970 (7th
Cir. 2013).
Cornish also argues that the Rooker‐Feldman doctrine deprived the district court
of jurisdiction over Deutsche Bank’s action. See Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Under the
doctrine, no federal court other than the Supreme Court has subject‐matter jurisdiction
to adjudicate suits “brought by state‐court losers complaining of injuries caused by
state‐court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see Iqbal v. Patel, 780 F.3d 728, 729
(7th Cir. 2015). But in this case, Deutsche Bank’s predecessor in interest, Avelo, was not
a state‐court loser—as explained, there was no merits disposition—and Deutsche Bank’s
foreclosure suit did not invite review or rejection of the state‐court judgment dismissing
the case for want of prosecution. Cf. Mains v. Citibank, N.A., 852 F.3d 669, 677 (7th Cir.
2017) (reasoning that plaintiff seeking to vacate state judgment of foreclosure runs into
Rooker‐Feldman). Therefore, the Rooker‐Feldman doctrine did not apply.
AFFIRMED