BMO Harris Bank N.A. v. Carol Anderson , 917 F.3d 566 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3073
IN THE MATTER OF:
CAROL S. ANDERSON AND MARK R. ANDERSON,
Debtors.
APPEAL OF:
BMO HARRIS BANK, N.A.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 4748 — Jorge L. Alonso, Judge.
____________________
ARGUED SEPTEMBER 17, 2018 — DECIDED FEBRUARY 26, 2019
____________________
Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg-
es.
EASTERBROOK, Circuit Judge. Mark Anderson and Walter
Kaiser jointly borrowed about $700,000 from BMO Harris
Bank; the loan was secured by a mortgage. They did not pay,
and the Bank filed a foreclosure action in state court. That
action was put on hold when Anderson and his wife (who
need not be mentioned again) commenced a bankruptcy
proceeding. After the Bank asked Bankruptcy Judge Cox to
2 No. 17-3073
lift the automatic stay under 11 U.S.C. §362 she entered an
order granting “full and complete relief from the Automatic
Stay of Section 362 to permit BMO HARRIS BANK to pro-
ceed with the pending State Court foreclosure litigation with
respect to the property commonly known as 151 W. Wing
St., Unit 905, Arlington Heights, Illinois 60005 as more par-
ticularly described in the Motion for Relief.”
Back in state court the Bank asked the judge to put the
property up for auction. That was done, and the sale was
confirmed. After the sale the Bank asked for a deficiency
judgment against Kaiser but not against Anderson. (Earlier
the Bank had requested a deficiency judgment against both
borrowers, but it did not repeat this after the sale.) The state
judge awarded the Bank about $650,000 in personam against
Kaiser, but with respect to Anderson the judgment was in
rem only (that is, without recourse against Anderson). The
Bank did not appeal the omission of a deficiency judgment
against Anderson.
The state litigation ended in April 2015, but the federal
litigation continues. The Bank made a claim against Ander-
son for the same $650,000 shortfall that the state judge had
awarded against Kaiser. (Anderson and Kaiser are jointly
and severally liable on the loan.) Anderson asked Judge Cox
to hold that the state court’s judgment extinguished the
Bank’s claim through the doctrine of claim preclusion: the
Bank could have received a deficiency judgment against An-
derson but did not, and Illinois does not allow single claims
to be split into multiple suits or litigated in multiple forums.
Judge Cox denied this motion, and Anderson took an inter-
locutory appeal under 28 U.S.C. §158(a)(3). The district court
reversed, holding that the absence of a deficiency judgment
No. 17-3073 3
against Anderson in the state case blocks any further pro-
ceedings against him related to this loan. 2017 U.S. Dist.
LEXIS 142599 (N.D. Ill. Sept. 5, 2017).
The Bank immediately appealed to us. Unlike the district
court, which can accept interlocutory appeals under
§158(a)(3), our jurisdiction is limited to final decisions. 28
U.S.C. §158(d)(1). (There are exceptions for appeals direct
from bankruptcy courts to the courts of appeals, see
§158(d)(2), but none applies.) We directed the parties to file
supplemental memoranda discussing appellate jurisdiction,
particularly because the Bank’s claim arose as a contested
maker in the main proceeding rather than as an adversary
action, the usual source of appellate business when the main
proceeding continues in the bankruptcy court. The memo-
randa have been received, and we can proceed to decision.
Many opinions in this circuit conclude that a district
court’s decision is “final” under §158(d)(1) when it conclu-
sively resolves the sort of dispute that would be a stand-
alone case outside of bankruptcy. See, e.g., Schaumburg Bank
& Trust Co. v. Alsterda, 815 F.3d 306, 312–13 (7th Cir. 2016); In
re Wade, 991 F.2d 402, 406 (7th Cir. 1993). Bullard v. Blue Hills
Bank, 135 S. Ct. 1686, 1692 (2015), implies approval of these
decisions. A claim to foreclose a mortgage and collect a defi-
ciency judgment on the note is a common stand-alone dis-
pute outside of bankruptcy, so it is covered by this principle.
And we do not see any reason why it should maker whether
a dispute that could have been a stand-alone suit outside
bankruptcy has been resolved in an adversary proceeding or
a contested maker. This circuit has several times accepted
appeals from final decisions in contested makers. See, e.g., In
re UAL Corp., 408 F.3d 847, 850 (7th Cir. 2005). Although
4 No. 17-3073
these might be disparaged as drive-by jurisdictional rulings,
see Steel Co. v. Citizens for BeFer Environment, 523 U.S. 83, 91
(1998), we lack a good reason to depart from them given the
absence of any such distinction in the statutory text.
One potential jurisdictional problem remains, however.
Some of our decisions say that an appeal under §158(d)(1) is
possible “only if the bankruptcy court’s original order and
the district court’s order reviewing the bankruptcy court’s
original order are both final.” In re Rimsat, Ltd., 212 F.3d
1039, 1044 (7th Cir. 2000). See also, e.g., In re Salem, 465 F.3d
767, 771 (7th Cir. 2006); Zedan v. Habash, 529 F.3d 398, 402
(7th Cir. 2008); Schaumburg Bank, 815 F.3d at 312. Although
the district court’s order is final, the bankruptcy court’s or-
der was not: Judge Cox denied a motion to dismiss the claim
but left open questions such as whether the Bank is entitled
to a deficiency judgment and, if so, how much. If we take lit-
erally the language in Rimsat and other opinions, we must
dismiss this appeal.
We do not think, however, that Rimsat and similar cases
foreclose appeals of all disputes in which the district court’s
jurisdiction rests on §158(a)(3). All of the decisions cited in
the preceding paragraph—and there are more, cited in turn
in those opinions—arise from appeals taken under 28 U.S.C.
§158(d)(1), which provides: “The courts of appeals shall have
jurisdiction of appeals from all final decisions, judgments,
orders, and decrees entered under subsections (a) and (b) of
this section.” Subsection (a), the only one relevant here, deals
with proceedings in the district court, not the bankruptcy
court. The statute thus asks whether the district court’s deci-
sion is final, not whether the bankruptcy court’s was. We
could not adhere to the position that an interlocutory bank-
No. 17-3073 5
ruptcy-court decision, followed by a final district-court deci-
sion, is not appealable, without contradicting the statute.
As far as we can see, none of the opinions in which this
language appears stems from the sequence we have: an in-
terlocutory decision by the bankruptcy judge, followed by a
final decision in the district court. (Final because, after the
district court’s decision, there is no more work for the bank-
ruptcy judge to do.) In Rimsat, Salem, and Zedan both deci-
sions were final (so appeal was not problematic); in Schaum-
burg Bank both decisions were interlocutory, so the absence
of appellate jurisdiction also was straightforward. The “both
decisions must be final” language makers only when one
court has rendered a final decision and the other has not.
For example, suppose that the order of decision in this
case had been reversed: Judge Cox found the Bank’s claim
precluded, and the district court disagreed, directing the
bankruptcy court to determine how much (if anything) An-
derson owed to the Bank. In that sequence an appeal to this
court would not have been authorized—not because one de-
cision was final and the other not, but because the district
court’s decision, in particular, would not have been final. See,
e.g., In re Rockford Products Corp., 741 F.3d 730, 733 (7th Cir.
2013); In re Gordon, 743 F.3d 720, 723 (10th Cir. 2014).
But when an interlocutory decision by a bankruptcy
judge is reversed by a ruling that leaves no more work for
either the bankruptcy court or the district court, the decision
is canonically final, making an appeal under §158(d)(1)
proper. That’s our situation.
To put this differently, if the district court’s order leaves
more work to be done (other than a ministerial action) in ei-
6 No. 17-3073
ther the bankruptcy court or the district court, the district
court’s order is itself not final. An immediate appeal could
not conclusively resolve the case, because the loose ends still
to be tied up (in the bankruptcy court or the district court)
could generate another appeal, violating the policy against
piecemeal appeals. Here, by contrast, the district court’s de-
cision leaves nothing more to be done there or in the bank-
ruptcy court: the Bank’s claim against Anderson is done (un-
less we reverse).
A table may help to visualize the four possibilities:
Bankruptcy court Bankruptcy court
decision final decision interloc-
utory
District court de- Appealable (e.g., Appealable (this
cision final Rimsat) case)
District court de- Not appealable Not appealable
cision interloc- (e.g., Rockford (e.g., Schaumburg
utory Products) Bank)
Our conclusion is consistent with the holding of every case
we could find. But because we disapprove language that has
been repeated in many of the circuit’s decisions, we have cir-
culated this opinion to all judges in active service. See Cir-
cuit Rule 40(e). None favored a hearing en banc.
On to the merits. The parties begin their presentation by
asking whether Judge Cox’s order authorized the state court
to enter a judgment against Anderson in personam. They dis-
cuss the state’s law of preclusion only as a secondary con-
sideration. This is backward. The effect of a state court’s de-
No. 17-3073 7
cision depends on state law. Judgments of state courts “shall
have the same full faith and credit in every court within the
United States and its Territories and Possessions as they
have by law or usage in the courts of such State, Territory or
Possession from which they are taken.” 28 U.S.C. §1738. So
we must ask whether the Bank could seek further relief from
Anderson by a new suit in the courts of Illinois. Only if the
answer is no must we inquire whether something about the
automatic stay or Judge Cox’s order supersedes §1738.
Illinois requires litigants to present in a single proceeding
all of their theories arising from one transaction. In other
words, it disallows claim spliking. See, e.g., GE Frankona Re-
insurance Co. v. Legion Indemnity Co., 373 Ill. App. 3d 969
(2007). A recent decision applies this understanding to real-
estate foreclosure and holds that creditors who do not ask
for deficiency judgments in the foreclosure actions cannot
seek that relief later, in a different proceeding. See LSREF2
Nova Investments III, LLC v. Coleman, 2015 IL App (1st)
140184. The Bank observes that some earlier decisions take
the mortgage and note to be separate transactions, despite
their close relation, and permiked each to be sued on sepa-
rately. See, e.g., Turczak v. First American Bank, 2013 IL App
(1st) 121964; LP XXVI, LLC v. Goldstein, 349 Ill. App. 3d 237
(2004).
We need not try to anticipate how the Supreme Court of
Illinois would reconcile this apparent conflict, because all of
the state’s authorities agree that, if a litigant presents both
the mortgage and the note in a single action, and fails to seek
a deficiency judgment on the note, it cannot do so in a sepa-
rate suit. That’s what happened here. The Bank filed a two-
count complaint seeking relief under both the mortgage
8 No. 17-3073
(count one) and the note (count two). Once the property had
been sold, however, it did not pursue a deficiency judgment
against Anderson. We could not find any state decision that
permits a lender to do this and still try to get a deficiency
judgment on the note in some separate proceeding. And if
the Bank cannot get such a judgment in state court, then un-
der §1738 it cannot get one in federal court either.
To this the Bank responds that the state court’s decision
is not final—after all, it leaves dangling the complaint’s re-
quest for a deficiency judgment against Anderson. If the
judgment is not final, it lacks preclusive effect. But the state
judge did not reserve any question for future decision. When
granting summary judgment to the Bank, the judge stated
that she was entering judgment “under Counts I and II of the
Second Amended Complaint” (that is, both the court seeking
a deficiency judgment and the one seeking foreclosure). She
also stated that the maker remained pending, but just for the
purposes of enforcing the decision and confirming the sale.
Illinois treats a foreclosure action as finally decided once the
“court enters an order approving the sale and directing the
distribution.” EMC Mortgage Corp. v. Kemp, 2012 IL 113419
¶11. The trial court entered such an order in April 2015, and
in almost four years since there has not been any hint from
the judge that she considers the job unfinished—nor has the
Bank asked the judge to do anything further. We conclude
that the decision is final.
The Bank tells us that the state judiciary might permit it
to reopen the proceeding to seek a deficiency judgment
against Anderson. Maybe so, but the Bank has not asked. We
must apply §1738 to the decision on the books.
No. 17-3073 9
The Bank insists, however, that claim preclusion is irrele-
vant because §362, the automatic stay in bankruptcy, de-
prived the state court of “jurisdiction” to make any decision
at all, except to the extent allowed by the bankruptcy
judge—and the Bank believes that a state court’s judgment
cannot affect any maker over which it lacks jurisdiction. This
line of argument is doubly wrong.
First, §362(a) does not concern jurisdiction. It provides
that the filing of a bankruptcy action “operates as a stay” of
certain makers. It does not establish exclusive federal juris-
diction over any of those makers. One of the things the state
court had jurisdiction to decide was the meaning of the
bankruptcy court’s order lifting the automatic stay. If the
Bank had asked for a judgment in personam against Ander-
son, he might have replied (contrary to the position he takes
in this court) that Judge Cox’s order did not allow this. If the
state court agreed with that view, it might have held the case
open to allow deficiency-judgment proceedings after the
bankruptcy ended. But the Bank did not ask, and the state
court never had to decide what effect to give to either the au-
tomatic stay or Judge Cox’s order. Having bypassed this
maker in state court, the Bank is not well situated to ask us
to decide what the state court might have done, had it been
asked. The one thing it would not have done is declare that it
lacked jurisdiction.
Second, even federal statutes that do provide for exclu-
sive jurisdiction, such as the antitrust laws, do not supersede
§1738. That’s the holding of Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373 (1985). Marrese sued in
Illinois under a state-law theory. After losing, he filed an an-
titrust suit, in federal court, concerning the same transac-
10 No. 17-3073
tions. The Supreme Court held that §1738 and state-law rules
of preclusion govern the defense of preclusion in the federal
suit even though federal courts have exclusive jurisdiction of
federal antitrust claims. That’s equally true of claims pend-
ing in bankruptcy, even if we were to akach the “jurisdic-
tional” label to the automatic stay.
Marrese considered but rejected the possibility that the
antitrust laws could be deemed to supersede §1738 by estab-
lishing exclusive federal jurisdiction. 470 U.S. at 380–81. See
also Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982)
(federal civil-rights laws do not modify §1738). Section 362 of
the Bankruptcy Code, which does not address §1738, should
be treated the same for this purpose as federal antitrust and
civil-rights laws.
Marrese mentioned that state law might itself carve out
makers over which state courts lack jurisdiction. See 470 U.S.
at 373, citing Restatement (Second) of Judgments §26(1)(c)
(1982). That possibility need not detain us. The Bank could
have asked the state court to determine for itself how far
Judge Cox’s order lifted the stay. If Anderson took in the
state court the same view he takes here—that Judge Cox’s
order lifted the stay in full and allowed the state tribunal to
exercise plenary power over the Bank’s claims—the whole
dispute would have been wrapped up then and there. The
state court was not powerless.
For the reasons we have given, it is unnecessary to de-
termine the meaning of Judge Cox’s order. Anderson em-
phasizes the words “full and complete relief,” while the
Bank asserts that the reference to the property securing the
loan implies that the stay had been lifted with respect to the
mortgage and not the note. The Bank wants us to construe
No. 17-3073 11
orders lifting or modifying the automatic stay “strictly”
against creditors (though it is hard to see why banks would
think that such a rule favors them). A few courts have issued
opinions articulating a strict-construction norm. We need not
decide but are skeptical. Why create a presumption against
permiking a state court to decide issues of state law?
One set of problems in bankruptcy law comes from the
fact that bankruptcy judges lack the salary and tenure pro-
tections of Article III, which means that they cannot exercise
the same powers as district judges over disputes arising un-
der state law. See Stern v. Marshall, 564 U.S. 462 (2011);
Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982). Bankruptcy judges may transfer authority
over state-law claims (or whole cases) to district judges, and
they may relinquish authority in favor of state courts. 28
U.S.C. §1334. Having filed a claim in Anderson’s bankrupt-
cy, the Bank could not complain about the bankruptcy
judge’s limited tenure-and-salary protections. But a bank-
ruptcy judge remains free to think that some claims can be
resolved more quickly, or more appropriately, by the state
courts. Judge Cox made that decision at least about the
Bank’s akempt to foreclose on the mortgage. Having made
that decision, it would be odd to want to duplicate the pro-
ceedings, even in part, by reserving the deficiency judgment
to herself. Why interpret the order to produce two proceed-
ings when one suffices?
Allowing the state judiciary to enter a deficiency judg-
ment in a foreclosure proceeding does not undermine any
function of bankruptcy law. If the state judge had held that
Kaiser and Anderson are jointly and severally liable for the
$650,000 deficiency, the Bank’s claim still would have re-
12 No. 17-3073
turned to the bankruptcy court for it to resolve any disputes
about the priority of competing claims against Anderson’s
assets and whether any particular debt should be dis-
charged. Trying to get around the application of §1738 or
reading Judge Cox’s order narrowly to compel the sort of
claim spliking forbidden by state law would not serve any
goal of federal bankruptcy policy. It would simply prolong
litigation. (Indeed, on the Bank’s current understanding the
state court could and perhaps should have left the foreclo-
sure proceeding in stasis until it had indubitable authority to
resolve the whole case. That would not have served either
the Bank’s interests or Anderson’s.)
The Bank had its chance in state court and did not use it.
It is too late to hold Anderson liable for a deficiency judg-
ment. The Bank must be content with what it can collect
from Kaiser.
AFFIRMED