Dana Calhoun v. CitiMortgage, Incorporated

NONPRECEDENTIAL DISPOSITION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 October 21, 2014*
Decided October 21, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1674
DANA G. CALHOUN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois.
v. No. 1:13–cv–08042
CITIMORTGAGE, INC., Joan H. Lefkow,
Defendant-Appellee. Judge.
ORDER
Dana Calhoun mortgaged his rental house in 2008 but defaulted in early 2009. In
November 2013 he filed this action—which he captioned as a “Complaint for Mortgage
Modification Litigation”—against CitiMortgage, his loan servicer. By then an Illinois
circuit court had awarded CitiMortgage a judgment of foreclosure and approved a
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 14-1674 Page 2
judicial sale of the property. In his federal complaint, Calhoun essentially alleges that
CitiMortgage failed to halt the judicial sale even though he was seeking to lower his
monthly payment through the Home Affordable Mortgage Program, a federal initiative
that gives loan servicers incentives to accept lower payments from homeowners at risk
of foreclosure. See 12 U.S.C. § 5219(a); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547,
556–57 (7th Cir. 2012); Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 880–81 (9th Cir.
2013). Calhoun claims that CitiMortgage’s conduct violated the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692–1692p, the Illinois Consumer Fraud and Deceptive
Business Practices Act, 815 ILL. COMP. STAT. 505/1–505/11a, and Illinois common law.
Calhoun seeks damages and injunctive relief, including a “permanent loan
modification.”
On CitiMortgage’s motion, the district court dismissed the suit with prejudice,
reasoning that the Rooker-Feldman doctrine, see D.C. Court of Appeals v. Feldman, 460 U.S.
462 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923), precludes the exercise of federal
subject-matter jurisdiction. The court added that, jurisdiction aside, Calhoun’s complaint
does not state a claim under Illinois law. (The court’s decision is silent about the
adequacy of Calhoun’s claim under the Fair Debt Collection Practices Act, but that claim
may be ignored because CitiMortgage was already servicing Calhoun’s loan when he
defaulted and thus wasn’t a “debt collector” when it took steps to collect. See Carter v.
AMC, LLC, 645 F.3d 840, 843–44 (7th Cir. 2011); Bailey v. Security Nat’l Servicing Corp., 154
F.3d 384, 386–88 (7th Cir. 1998). Calhoun appeals.
The Home Affordable Modification Program, commonly called “HAMP,” was
launched by the Treasury Department in early 2009 and expanded to include rental
properties like Calhoun’s by June 2012—before the foreclosure judgment. See HAMP
SUPPLEMENTAL DIRECTIVE 12-02, at 4–6 (Mar. 9, 2012), https://www.hmpadmin.com/
portal/programs/docs/hamp_servicer/sd1202.pdf. Participating loan servicers, like
CitiMortgage, must consider a HAMP modification before initiating foreclosure
proceedings, or temporarily suspend ongoing foreclosure proceedings, if an eligible
homeowner seeks to participate in the program. See HAMP SUPPLEMENTAL DIRECTIVE,
at 7–8. CitiMortgage has never asserted that Calhoun’s loan for his rental property was
ineligible for a HAMP modification. According to Calhoun, CitiMortgage had asked him
for additional documents to complete his HAMP application but then failed to stop the
impending judicial sale, which occurred even before the deadline that the defendant had
given him for producing the requested documents. That sale was not confirmed by the
state court, however, for another two months.
No. 14-1674 Page 3
On appeal Calhoun argues that Rooker-Feldman does not strip the district court of
subject-matter jurisdiction because, he says, the state court’s foreclosure judgment was
not the cause of his injury. Rather, says Calhoun, his “injury was selling Plaintiff’s
property while in review of a HAMP.”
To the extent that Calhoun wants his loan to be modified or the foreclosure
overturned, Rooker-Feldman bars his claims because he is attacking the state foreclosure
judgment. That doctrine applies when a state court’s decision causes the federal
plaintiff’s injury. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005);
Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 646–47 (7th Cir. 2011); Taylor v.
Fed. Nat’l Mortg. Ass’n, 374 F.3d 529, 532–33 (7th Cir. 2004). Since Calhoun argues that the
judicial sale was improper because CitiMortgage did not comply with HAMP, he
effectively asserts that the state foreclosure judgment caused his injury. Yet the Illinois
courts will set aside a judicial sale at any time before confirmation if the homeowner can
show that the sale was conducted in violation of HAMP. 735 ILL. COMP. STAT. 5/15-
1508(d-5) (2010). Federal law does not provide a private right of action for violations of
HAMP, Wigod, 673 F.3d at 555, but Calhoun could have raised the issue of
CitiMortgage’s noncompliance as a defense in the foreclosure action.
Calhoun also claims, however, that CitiMortgage’s actions constituted violations
of Illinois law independent of the foreclosure process, premised on HAMP. See Wigod,
673 F.3d at 554–55. Claim preclusion would seem to be an obvious bar. See Arlin-Golf,
LLC v. Vill. of Arlington Heights, 631 F.3d 818, 821–22 (7th Cir. 2011); Garcia v. Vill. of
Mount Prospect, 360 F.3d 630, 634–44 (7th Cir. 2004); Schlangen v. Resolution Trust Corp.,
934 F.2d 143, 145–48 (7th Cir. 1991). But CitiMortgage never raised this affirmative
defense, and the district court relied on it only to dismiss Calhoun’s claim under the
Illinois Consumer Fraud and Deceptive Business Practices Act. This would leave the
Illinois common-law claims, but on appeal Calhoun never addresses the district court’s
lengthy analysis of those claims, which the court deemed inadequate to survive
CitiMortgage’s motion to dismiss. Calhoun’s brief includes no more than a generalized
assertion of error concerning the dismissal of his state-law claims, and thus his brief
presents us nothing to review. See FED. R. APP. P. 28(a)(8)(A); Ball v. City of Indianapolis,
760 F.3d 636, 645 (7th Cir. 2014); Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir.
2001).
Accordingly, the judgment is AFFIRMED.