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Bindel v. Selene Finance LP

United States District Court, N.D. Indiana, Hammond Division

July 15, 2019

FABIO A. BINDEL, Plaintiff,
v.
SELENE FINANCE LP and DOES 1 through 10, Defendants.

          OPINION AND ORDER

          THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURTCHIEF JUDGE

         This 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).

         The 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 MATTER JURISDICITON.

         BACKGROUND

         The 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.

         After 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.[1] 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.

         Subsequently, 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.

         Next, 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.

         Again, 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.

         Plaintiff 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.

         On June 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.

         Though 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 and members.

         DISCUSSION

         Rule 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 ...


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