Freedom Mortgage Corporation v. Burnham Mortgage, Incorporated ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3007
F REEDOM M ORTGAGE C ORPORATION,
Plaintiff-Appellant,
v.
B URNHAM M ORTGAGE, INCORPORATED , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 6508—Robert W. Gettleman, Judge.
A RGUED JUNE 1, 2009—D ECIDED JUNE 23, 2009
Before E ASTERBROOK , Chief Judge, and B AUER and
E VANS, Circuit Judges.
E ASTERBROOK, Chief Judge. The goal of a mortgage-
flipping scam is to deceive a potential lender about
the value of the collateral. Go-between G finds a
building for sale and arranges its sale to Buyer B for
more than its market value. B borrows the money for
the purchase, assisted by Appraiser A, who certifies to
the lender that the property is worth more than the
2 No. 08-3007
actual purchase price. Someone else (if not G himself)
certifies that B has put in a substantial down payment.
(Most lenders limit their exposure to 90% or less of the
property’s value; the buyer’s equity not only is extra
security but also ensures that the buyer will keep
the property in good shape.) Here is an example. Go-
between finds a property that can be purchased for
$50,000. Appraiser certifies that it is worth $100,000.
Buyer agrees to buy the property for $50,000 but tells
Lender that the price is $100,000 and that B will put up
$20,000 of his own funds. Lender provides the rest. At
closing, $50,000 of Lender’s money is paid to the original
owner; B and G split $30,000 (less the fee already paid to
Appraiser). B vanishes and never makes a payment on
the mortgage. When Lender forecloses, it suffers a $30,000
loss. See generally Decatur Ventures, LLC v. Daniel, 485
F.3d 387 (7th Cir. 2007).
Freedom Mortgage Corporation contends in this suit
that the defendants conducted such a scam. The
principal defendants, Burnham Mortgage (a broker) and
its manager John Jeffrey Hlava, played the role of G in
our example. (So Freedom alleges; its assertions have
yet to be tested but must be accepted for current pur-
poses.) Other defendants played the roles of Buyer B and
Appraiser A. Two of the Buyer defendants have
pleaded guilty to criminal charges of fraud. Other Buyer
defendants cannot be located (Freedom Mortgage says
that Burnham used phony names), and one insists that
her identity had been stolen and that she had nothing to
do with the transaction. The Appraiser defendants say
that their appraisals were honest. Two title insurers
No. 08-3007 3
complete the cast of defendants. The insurers promised
to indemnify Freedom Mortgage not only for any defects
in title but also for damages caused by failure to close
the real-estate transactions according to Freedom’s
specifications. Freedom says that Burnham and Exeter
Title closed deals with phantom buyers, at phony prices,
and without the promised down payments, entitling it
to indemnity from the insurers. The insurers (Exeter
and Ticor Title) have refused to pay, asserting that
Burnham and Exeter followed Freedom’s closing instruc-
tions.
Freedom contends that it is entitled to recoup its
losses under contracts with Burnham and the insurers. It
also contends that all defendants are liable in tort for
participating in a fraudulent scheme; it seeks actual and
punitive damages. Finally, Freedom maintains that the
fraudulent scheme was conducted using the mails and
interstate telecommunications system, exposing the
defendants to treble damages under 18 U.S.C. §1964(c),
part of the Racketeer Influenced and Corrupt Organiza-
tions Act. (Mail and wire fraud are predicate offenses
under RICO. 18 U.S.C. §1961(1)(B).)
The large number of defendants, roles, and transactions
has caused the litigation to become protracted. It has not
helped that the case is on its third district judge. In 2006
Judge Filip, the second judge assigned to the case, con-
cluded in a lengthy opinion that Freedom’s potential
recovery is limited by the fact that it (or its agents) pur-
chased the properties at foreclosure sales. Freedom used
the mechanism of a credit bid. In other words, Freedom
4 No. 08-3007
bid some or all of the outstanding balance of the loan,
rather than cash. The judge concluded that, as a matter
of Illinois law, even though only Freedom and the
buyers were parties to the foreclosures, Freedom cannot
recover damages from any third party by contending
that the property was worth less than the amount of the
credit bid. 2006 U.S. Dist. L EXIS 10538 (N.D. Ill. Mar. 13,
2006).
Here’s an illustration. Freedom loaned $244,211.37 on
the security of the real property at 7953 South Escanaba
Avenue in Chicago. When the buyer defaulted, Freedom
made a credit bid of $143,500 at the auction. That was
the winning bid. The state court awarded Freedom the
property and a default judgment of $100,711.37. Freedom
resold the property, realizing only $92,978.15. The
district court held that Freedom can not argue in this
suit that the property was worth less than $143,500. The
court reserved for future decision whether Freedom
can recover punitive damages under state law, or treble
damages under RICO, on account of this property, and
whether any of the non-buyer defendants may be liable
for the $100,711.37 deficiency. (The state court’s order
forbade Freedom to collect this deficiency from the
buyer but did not mention insurers and other third par-
ties.)
Defendants then filed a welter of motions for sum-
mary judgment. Some of these motions argued the
merits and some that damages had been wiped out. Before
acting on these motions, Judge Filip accepted an appoint-
ment as Deputy Attorney General and resigned from the
No. 08-3007 5
bench. The case was reassigned to Judge Gettleman, who
granted the motions for summary judgment on the
ground that Judge Filip’s opinion shows that the
federal suit is barred by claim preclusion, see 28 U.S.C.
§1738 (state law governs the effect of state judgments),
plus the Rooker-Feldman doctrine. See Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983). As Judge
Gettleman saw things, Freedom is trying to wage a col-
lateral attack on the state judgments. 2008 U.S. Dist.
L EXIS 54465 (N.D. Ill. July 11, 2008).
In this court the parties engage in vigorous debate
about whether Judge Gettleman correctly understood
and applied Judge Filip’s opinion. That topic is irrelevant.
The question we must decide is not the relation between
two opinions of the district court, but whether the judg-
ment of the district court correctly applies the Illinois
law of preclusion and the Rooker-Feldman doctrine.
Those legal issues are open to plenary consideration here.
We start with the Rooker-Feldman doctrine, because it
is a jurisdictional rule. Only the Supreme Court of the
United States may review the judgment of a state court
in civil litigation. But Freedom Mortgage isn’t trying
to overturn any judgment. The question at hand is the
effect of the foreclosure judgments, under the state’s law
of issue and claim preclusion. The Rooker-Feldman
doctrine does not displace §1738 and turn all disputes
about the preclusive effects of judgments into matters
of federal subject-matter jurisdiction. See Lance v. Dennis,
546 U.S. 459 (2006). The Rooker-Feldman doctrine is con-
6 No. 08-3007
cerned with “cases brought by state-court losers com-
plaining of injuries caused by state-court judgments”.
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S.
280, 284 (2005). Freedom Mortgage, the winner in the
state cases, complains about injuries caused by fraud
that predated the state litigation and is neither addressed
nor redressed by the foreclosure judgments. The Rooker-
Feldman doctrine does not prevent the pursuit of compen-
sation for injury caused by fraudulent schemes, even
though §1738 and the principles of defensive non-
mutual issue preclusion may limit the recoverable dam-
ages.
As for preclusion: Why would either issue or claim
preclusion block all recovery against non-parties to the
state proceedings? Take a simple situation. Freedom
lends to Borrower B against two kinds of security: the
real property, and a guaranty of B’s note by a solvent
obligor, such as B’s rich uncle. If B defaults, Freedom
will foreclose on the note and mortgage, then try to
collect the deficiency judgment from B’s uncle. Illinois
law permits a separate action on the guaranty. See
Farmer City State Bank v. Champaign National Bank, 138 Ill.
App. 3d 847, 852, 486 N.E.2d 301 (1985); LP XXVI, LLC v.
Goldstein, 349 Ill. App. 3d 237, 811 N.E.2d 286 (2004). The
uncle cannot invoke claim preclusion on the theory that
all potentially liable parties must be joined in the fore-
closure action. Nor can the uncle use issue preclusion
to avoid payment. A lender’s credit bid conclusively
resolves the property’s market value. Thus Freedom
could not lend $250,000, make a credit bid of $200,000,
and still collect more than $50,000 on the uncle’s guar-
No. 08-3007 7
anty. Judge Filip’s comprehensive opinion covers
that ground; we need not repeat its explanation. See
also Chrysler Capital Realty, Inc. v. Grella, 942 F.2d 160 (2d
Cir. 1991) (Michigan law); Alliance Mortgage Co. v. Rothwell,
10 Cal. 4th 1226, 900 P.2d 601 (1995). But Freedom could
collect the unpaid $50,000 from the guarantor. And if, as a
matter of Illinois law, a lender may sue a guarantor
separately, why not a mortgage broker, title insurer,
appraiser, or other potentially liable entity?
Defendants’ answer is that collection against a
guarantor is justified by the waiver clause common in
guaranty contracts. The guaranty at issue in LP XXVI, for
example, waived “any and all rights or defenses arising
out of . . . any ‘one action’ or ‘anti-deficiency’ law”. 349
Ill. App. 3d at 238. None of their contracts has such lan-
guage, defendants submit.
The problem with this argument is that there was no
such language in the guaranty at issue in Farmer City
State Bank, and the court in LP XXVI made nothing of the
waiver. Language of this sort is added by lawyers
drafting an instrument that will be used in many states.
What Farmer City State Bank and LP XXVI hold is that
Illinois does not require all claims to be made in a
single action, and there is no need for a waiver of a nonex-
istent mandatory-joinder rule. Illinois follows the same-
transaction approach to claim preclusion. See River
Park, Inc. v. Highland Park, 184 Ill. 2d 290, 309–10, 703
N.E.2d 883 (1998). Farmer City State Bank and LP XXVI
concluded that claims on a guaranty do not arise from
the same transaction as the note. A claim on a note de-
8 No. 08-3007
pends on the borrower’s promise to pay; a claim on a
guaranty depends on the lender’s inability to collect
from the borrower. Most guarantees are discharged
when the borrower pays (or the collateral proves to be
sufficient); that’s enough to show that claims on the note
and guaranty don’t rest on the same transaction. Often a
claim on a guaranty must wait until other sources of
payment have been exhausted, and the deficiency judg-
ment in the foreclosure action resolves how much
the guarantor owes.
Claims against the borrower on the note, and against
a mortgage broker for fraud, are even less related than
claims on a note and guaranty. The questions litigated in
a mortgage foreclosure action are (a) did the borrower
make the promised payments?, and, if not, then (b) how
much is the collateral worth? The sort of questions that
Freedom wants to litigate against these defendants are:
(a) did they obtain spurious appraisals?; (b) did they
misrepresent the borrowers’ identities?; (c) did they
misrepresent the amount of the borrowers’ down pay-
ments; and (d) did they manage an “enterprise” through
a “pattern of racketeering activity”? Whether the
borrower paid is distinct from whether these defendants
committed fraud that induced Freedom to make loans,
or whether Burnham followed Freedom’s prescribed
closing procedures (the main issue in the action on the
insurance policies). We cannot imagine any argument
for allowing a separate action on a guaranty, while pre-
cluding a separate action against people who induced
the loan through fraud.
No. 08-3007 9
So much for claim preclusion—the modern name for
the merger and bar components of res judicata. See Taylor
v. Sturgell, 128 S. Ct. 2161, 2171 n.5 (2008). Defendants
get some aid from issue preclusion (collateral estoppel),
given the rule that Freedom is stuck with the value of
its credit bids. But this does not eliminate damages.
Deficiency judgments remain, and the non-borrower
defendants cannot shelter behind the clause in these
judgments precluding collection from the borrowers. The
total amount of deficiency judgments on the properties
at issue in this suit is almost $600,000. If Freedom can
make out its claim on the merits, some or all of these
defendants may be liable for that shortfall. Indeed, if
Freedom prevails on its RICO claim, some or all of the
defendants may be liable for three times that shortfall.
Punitive damages also may be available under Illinois
law. Nothing in the rule that a credit bid establishes
the collateral’s value blocks any of these remedies.
The state court’s judgments may have some other
effects as well. For example, the insurers contend that
Freedom’s willingness to forego the collection of any
deficiency from the borrowers impairs their right of
subrogation and so releases the claims on the insurance
contracts. That may or may not be right; if the borrowers
were phantoms, or judgment proof, Freedom has not
surrendered anything of value to the insurers. The insur-
ance contracts bar recovery only “to the extent that” the
right of subrogation has been impaired, which means,
Freedom says, that the insurers must show what they
lost as a result of the no-collection-from-the-borrowers
clauses in the state judgments. It would be premature
10 No. 08-3007
to address this issue now. Wrongly believing that Free-
dom’s claim was entirely blocked by the very fact of the
credit bids, the district court did not tackle this subject.
This and the other unresolved issues deserve the district
court’s speedy attention. This suit has passed its sixth
anniversary and should not be allowed to grow a beard.
The judgment is reversed, and the case is remanded
for proceedings consistent with this opinion.
6-23-09