United States District Court, N.D. Indiana, Hammond Division
FABIO A. BINDEL, Plaintiff,
SELENE FINANCE LP and DOES 1 through 10, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURTCHIEF
matter is before the Court on the Defendant's Motion to
Dismiss for Failure to State a Claim and Lack of Jurisdiction
[ECF No. 11]. The Plaintiff, Fabio A. Bindel, proceeding pro
se, filed a Complaint in this matter on May 10, 2019 [ECF No.
1]. The Plaintiff alleges that the Defendant, Selene Finance
LP, improperly failed to offer him a mediation and settlement
conference prior to an action for foreclosure of his home.
Compl. ¶¶ 15-16. The Complaint alleges five causes
of actions: violation of Indiana Code §24-5-0.5-1 (Count
1); violation of Indiana Code §32-30-10.5 (Count 2);
fraud (Count 3); violation of HUD Regulations, 24 C.F.R.
§203.604 (Count 4); and violations of the False Claims
Act FCA/Qui Tam, 31 U.S.C. §§3729, 3733 (Count 5).
Defendant filed their motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). See
Mot. to Dismiss, ECF No. 11. Under 12(b)(1), the Defendant
argues that the Rooker-Feldman doctrine deprives
this Court of subject matter jurisdiction over the
Plaintiff's Complaint because the requested relief would
require the Court to disrupt a final judgment of the state
court. For the reasons set forth below, the Motion to Dismiss
is GRANTED and the case is DISMISSED for LACK OF SUBJECT
Plaintiff procured a residential mortgage loan for the real
property located at 1890 Fernhill Dr., Valparaiso, IN 46385.
The mortgage loan was executed to secure the repayment of a
promissory note. Both the note and mortgage were assigned to
the Defendant. The Plaintiff defaulted but was able to secure
loan assistance through Indiana's Hardest Hit Fund (the
“Fund”). The Fund reinstated Plaintiff's
account beginning March 18, 2015, and provided assistance to
the Plaintiff through November 1, 2016. The Defendant
received funds amounting to $29, 711.78 from the Fund and
applied it to the Plaintiff's account. The Plaintiff
stopped making payments on the mortgage after December 29,
2016 and became delinquent on February 1, 2017. The Defendant
sent the Plaintiff a default letter on March 21, 2017
providing the Plaintiff an opportunity to cure.
the Plaintiff failed to cure the default, the Defendant filed
a complaint on the note and for foreclosure on the mortgage
in Porter County Superior Court on July 6, 2017. See
Mot. to Dismiss, Foreclosure Complaint, ECF No.
11-3. Ultimately, the Porter County Superior
Court entered a default judgment for foreclosure on December
7, 2017, against the Plaintiff. See Mot. to Dismiss,
Judgment Entry and Decree of Foreclosure, ECF No. 11-4.
the Plaintiff filed a Chapter 13 bankruptcy petition in the
Northern District of Indiana. ECF No. 11-5, Docket for
Bankruptcy Petition, No. 18-20610. The bankruptcy case was
dismissed after the Plaintiff failed to meet certain plan
requirements. See id.
on May 29, 2018, the Plaintiff filed a motion in Porter
County Superior Court to vacate the foreclosure judgment. On
July 10, 2018, the Porter County Superior Court denied the
motion to vacate. The Plaintiff did not appeal the decision.
the Plaintiff turned to the bankruptcy court on February 11,
2019, by filing a Chapter 13 bankruptcy petition.
See ECF No. 11-6, Docket for Bankruptcy Petition,
No. 19-20261. On the trustee's motion, the case was
dismissed on April 5, 2019. See id.
filed this instant case on May 10, 2019, essentially arguing
that the state court's foreclosure judgment was erroneous
because the Defendant misapplied the payments it received
from the Hardest Hit Fund and failed to offer the Plaintiff a
mediation or settlement conference during the foreclosure
action in state court.
18, 2019, the Plaintiff filed a Motion for Preliminary
Injunction for Expedited Consideration, or for Temporary
Restraining Order [ECF No. 10], requesting that the Court
halt the foreclosure sale scheduled for July 17, 2019. One
day later, the Defendant filed a Motion to Dismiss for
Failure to State a Claim and Lack of Jurisdiction [ECF No.
11]. On June 26, 2019, the Defendant filed its Response [ECF
No. 14] to the Plaintiff's Motion for Preliminary
Injunction. On July 3, 2019, the Plaintiff filed his
Opposition [ECF No. 17] to the Defendant's Motion to
Dismiss. On July 10, 2019, the Defendant filed a Reply [ECF
No. 19] in support of its Motion to Dismiss. Finally, on July
15, 2019, the Plaintiff filed a Sur-Reply [ECF No. 21] in
Opposition to the Defendant's Motion to Dismiss.
the Plaintiff alleges federal and state law claims against
the Defendant, the Court notes that the Plaintiff invoked
this Court's jurisdiction through diversity jurisdiction
by filing this litigation in federal court. As the Court must
be able to ascertain the citizenship of the parties to
determine if diversity jurisdiction exists, Magistrate Judge
John E. Martin ordered the Defendant, a limited partnership,
to provide the names and citizenships of all its constituent
partners and members. See June 13, 2019 Order, ECF
No. 9. On June 10, 2019, the Defendant filed a Supplemental
Jurisdictional Statement [ECF No. 19] informing the Court
that it was still in the process of ascertaining the
identifies and citizenships of all its constituent partners
12(b)(1) provides that a party may assert the defense of lack
of subject-matter jurisdiction by motion. Fed.R.Civ.P.
12(b)(1). “Subject-matter jurisdiction is the first
question in every case, and if the court concludes that it
lacks jurisdiction it must proceed no further.”
Illinois v. City of Chi., 137 F.3d 474, 478 (7th
Cir. 1998). When considering a motion to dismiss for lack of
subject matter jurisdiction, a court must accept as true all
well-pleaded allegations and ...