21-1084 | Omnilex

Gesamter Gesetzestext

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-1084 and 21-1101
C ITI M ORTGAGE, I NC .,
Plaintiff-Appellee,
v.
JEROME M. DAVIS and L YNNE
TERNIOR -DAVIS ,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:19-cv-50299 — Iain D. Johnston, Judge.
____________________
No. 21-1446
JEROME M. DAVIS ,
Plaintiff-Appellant,
v.
C ITI M ORTGAGE, I NC .,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:19-cv-50277 — Iain D. Johnston, Judge.
____________________

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2 Nos. 21-1084, et al.
S UBMITTED S EPTEMBER 22, 2021 — DECIDED DECEMBER 10, 2021
____________________
Before SYKES , Chief Judge, and F LAUM and BRENNAN , Cir-
cuit Judges.
BRENNAN , Circuit Judge. For several years, CitiMortgage,
Inc., has ȱȱȱȱȱĴȱ ȱJerome M. Davis
and Lynne Ternoir-Davis over a mortgage the couple took out
on their residence in 2005. After the Davises defaulted on the
ȱȱęȱȱ¢ǰȱ ȱȱȱȱȬ
¢ȱǰȱ the bankruptcy court later held did
not extend to the debt Davis ȱǯȱ
Rather than appeal that ǰȱȱȱĴȱȱ
¢ȱĴȱat court’s ruling—ęǰ ¢ȱĴȱȱ
remove CitiMortgage’s foreclosure action to federal court,
and second, ¢ȱęȱȱȱȱȱCitiMortgage. Da-
vis lost in each of those proceedingsǰȱȱȱ ȱ
ȱĴ¢ȱȱȱ ȱȱȱ the
foreclosure proceeding.
ȱȱȱ ȱǯȱȱ e lack jurisdiction
ȱ ȱthe remand order, and Davis ȱ ȱȱȬ
ments challenging ȱĴ¢ȱȱȱȱ . We also
ȱ ȱȱȱȂȱdismissal of Davis’s suit against
CitiMortgage.
I
This dispute ȱȱ Ǳȱ(1) an adversary
proceeding in bankruptc¢ȱȱȱ ȱJerome Davis chal-
lenged CitiMortgage’s debt and security interest; (2) CitiMort-
gage’s foreclosure action against the Davises; and (3) Davis’s
suit against CitiMortgage alleging, among other things, unfair

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Nos. 21-1084, et al. 3
debt collection practices. Only the Ĵȱ ȱactions are before
us.
1. Davis’s bankruptcy and adversary proceeding. In 2005, the
Davises ¡ȱ ȱ ȱ ȱ ȱ ȱ ȱȱ
Amro Mortgage Group, Inc. After defaulting on the mort-
gage, Davis 1 entered bankruptcy in 2011. CitiMortgage, the
successor in interest to ABN Amro Mortgage Group due to a
mergerǰȱęȱȱȱȱclaim in the amount of $478,238.90,
secured by the Davis’s residence. Davis’s Chapter 13 bank-
¢ȱȱ ȱȱȱŘŖŗŘȱand incorporated an agree-
ȱ ȱȱȱȱȱȱȱ¢ȱ
on Davis making monthly mortgage payments to CitiMort-
gageǰȱȱ ȱȱ¢ȱȱȱa post-petition
arrearage of $23,402.24 and a pre-petition arrearage of
$78,640.90. According to the agreement, if Davis defaulted on
the ¢ȱȱǰȱȱȱ¢ȱ ȱt,
and CitiMortgage could foreclose on the residence.
In 2014, after Davis defaulted on the payments, CitiMort-
gage e ȱȱȱȱȱęed the bankruptcy
court that the stay had terminated. Davis then challenged
CitiMortgage’s debt and security interest by ęing an adver-
sary proceeding, ȱȱ¢ȱęȱ¢ǰȱŘśŖȱȱ
entries, and scores of hearings. While that ȱ ȱ
pending, Davis completed the Chapter 13 plan and received
a bankruptcy discharge in 2018.
Ȃȱ¢ȱȱȱȱŘŖŗşȱ ȱȱ
bankruptcy court granted CitiMortgage’s motion to dismiss.
1 Jerome Davis is a party in all the underlying suits. Lynne Ternoir-
Davis is a party only in the foreclosure proceeding. Both individuals
executed ȱ ȱ ȱ ǯȱ ȱ ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ
collectively as “Davis.”

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4 Nos. 21-1084, et al.
Davis v. CitiMortgage, Inc. (In re Davis), Ch. 13 Case No. 11-
81785, Adv. No. 14-96129, 2019 WL 2108048 (Bankr. N.D. Ill.
May 10, 2019). 2 The court decided that Davis’s 2018 bank-
ruptcy discharge did not cover ȱȱ ȱCitiMortgage:
[T]ȱ ȱ ȱ ǰȱ ǯȱ ȱ
the Debtor does not implicate his discharge. …
To the extenȱȱǰȱ ǯȇȱȱ ȱ
treated by the plan, such claim is non-discharge-
able as a cured long-term debt. 11 U.S.C.
§ ŗřŘŞǻǼǻŗǼǯȱȱȱ¡ȱȱȱ ȱ
of CitiMortgage, Inc.'s claim caused its claim to
not be “provided for by the plan,” then on that
account it is not subject to the discharge. 11
ǯǯǯȱ ȗȱ ŗřŘŞǻǼǯȱ ȱ ¢ǰȱ ȱ ȇȱ Ȭ
charge is not implicated.
Id. at *5. Because ȱȱȱ ȱȃȱ -party dispute
ȱȱ ȱ ȱȱȱȱbankruptcy rights,”
id., the court granted CitiMortgage’s motion to dismiss.
Tȱ ȱȱȱęȱȱȱ¢ȱȱȱtold
Davis that a ȱȱȱěȱȱȱ ȱȬ
gage. In 2016, after Davis’s bankruptcy case had been errone-
ously closed, the court reopened it and stated “[t]he debt
ȱ appears to be such a debt that is not
subject to discharge.” Then, in its 2018 opinion denying
CitiMortgage’s motion for summary judgment in the adver-
sary proceeding, the court decȱ ȱ ȱ ȱ ȃ ȱ ȱ
subject to discharge—ȱȱȱ ȱȱ-term debt
provided for under Section 1322(b)(5) of the Bankruptcy Code
2 Neither party included this bankruptcy court decision in their sub-
missions to this court.

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Nos. 21-1084, et al. 5
ȱȱȱȱȱ ȱȱȱȱȱȱ¢ȱȱȬ
ęȱȱŗřȱ.”
After the bankruptcy court dismissed the adversary pro-
ceeding, Davis had 14 days to appeal the court’s decision un-
der Federal Rule of Bankruptcy Procedure 8002. Davis did not
appeal that decision.
2. CitiMortgage’s foreclosure action. 3 ȱȱȬ
ǰȱȱęȱȱȱȱȱȱ
in Illinois state court. ȱĴȱȱȱȱȬ
sure action to bankruptcy court, arguing ȱ ȱȬ
ęȱbecause ȱ ȱȱȱȱęiency
judgment against ǰȱ ȱallegedly contravened Davis’s
bankruptcy discharge. In response, CitiMortgage moved to
ǰȱȱȱ ȱȱȱȱȱȱȱ
of its foreclosure pleading.
The bankruptcy court instructed Davis to respond to
Ȃȱȱȱȱ ȱ ¢ȱȱȱȱ
jurisdiction. But Davis—a licensed attorney ȱȱ
ȱȱȱ ȱȱȱ¢ȱȱȱ ȱ
before our court, ȱ ȱȱȱȱ—failed to respond.
Because Davis had no basis to assert federal question jurisdic-
ǰȱ ȱ ȱ ȱ ǰȱ ȱ ȱ ȱ
ȱ ¢ȱ ȱ ȱ ȱ ȱ 28 U.S.C. § 1447(c).
Although lacking jurisdiction to reach the merits, the court
found it unreasonable for Davis to accuse CitiMortgage of vi-
ȱȱ¢ȱȱ ȱȱȱȃȱǰȱ
ȱȱǰȱȱȱȱ ȱȱǽǾȱ
is not subject to discharge in Mǯȱ Ȃȱ -closed
3 Ȃȱȱȱȱ ȱȱ—Nos. 21-
1084 and 21-1101—because Davis filed an amended notice of appeal in the
district court.

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6 Nos. 21-1084, et al.
bankruptcy case.” The court entered a separate, final order on
ȱȱȱȱȱ ¢ȱŜǰȱŘŖŘŖǰȱ ȱȱȱ
total of $6,500.
Davis appealed the bankruptcy court’s remand order to
the district court, but the ȱ ȱ Ĝǯȱ ȱ ȱ
appeals the remand order to us. He ȱȱ ȱȱȱ
Ĵ¢ȱ ȱ ȱ ȱ ȱȱ ǰȱ although he
failed to ȱȱ¢ȱȂȱęȱȱȱ
ȱ ȱǯȱ
3. Davis’s suit against CitiMortgage. In addition to CitiMort-
gage’s foreclosure action, Davis sued CitiMortgage in federal
district court, alleging violations of the Fair Debt Collection
Practices Act, the Illinois Consumer Fraud and Deceptive
Practices Act, and the 2018 bankruptcy discharge injunction.
But as the district court noted, all three of Davis’s claims cen-
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
subject to his 2018 discharge. Because the bankruptcy court
had held the opposite in Davis’s adversary proceeding, the
district court took judicial notice of the decision in In re Davis
and granted CitiMortgage’s motion to dismiss Davis’s suit
ȱ ǯȱ ȱ ȱ ȱ ȱ ssal of his suit
against CitiMortgage.
II
ȱȱǰȱ ȱȱȱIn re Davis, ȱ ȱȱȬ
ruptcy court ruled that Davis’s 2018 bankruptcy discharge
ȱȱȱȱȱ ȱ, is not on appeal
before us. Davis had an opportunity to timely appeal the
bankruptcy court’s decision, but he chose not to do so.
Davis challenges the bankruptcy court’s remand of
CitiMortgage’s foreclosure action. Before reaching the merits

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Nos. 21-1084, et al. 7
of his argument, ȱȱęȱȱ ȱ ȱȱȬ
ǯȱ ȱȱȱȱinquiry.
Title 28 U.S.C. § 1447(d) provides that “[a]n order remand-
ȱȱȱȱȱȱȱȱ ȱȱ ȱȱȱȱ
ȱȱȱȱ ǯȄ ȱ ȱȱeviously
ǰȱȗȱŗŚŚŝǻǼȱȱ ȱȱȱȱȗȱŗŚŚŝǻǼǰȱȱ
“[t]he reasons for remand that are enumerated in § 1447(c) in-
ȱȱȱȱȱȱȱȱȱĴȱ
jurisdiction.” Foster v. Hill, 497 F.3d 695, 697 (7th Cir. 2007); see
Hernandez v. Brakegate, Ltd., 942 F.2d 1223, 1225 (7th Cir. 1991).
ȱ ȱ ěȱ ȱ § 1447(d) is that “[i]n most removed
ǰȱŘŞȱǯǯǯȱȗȱŗŚŚŝǻǼȱȱ ȱȱȱȱǯȄȱ
ĵȱǯȱȱǯ, 910 F.3d 1010, 1013 n.1 (7th Cir. 2018).
In addition to § 1447(d)’s general prohibition on our juris-
diction over remand orders, 28 U.S.C. § 1452(b) adds an inde-
pendent limitation on our ¢ȱȱ the “[r]emoval of
claims related to bankruptcy cases.” This statute states that a
remand order issued “on any equitable ground” “is not re-
ȱ¢ȱȱȱ ȱ¢ȱȱȱȱȱ… or
by the Supreme Court of the United States.” Our prior cases
have interpreted this provision to mean that “a district court’s
decision to remand a case or claim pursuant to § 1452(b) is
ȱ¢ȱ ȱȱȱȱ‘any equitable ground’ in
doing so.” Good v. Voest-Alpine Indus., Inc., 398 F.3d 918, 927
(7th Cir. 2005). But in the context of § 1452(b)ǰȱ ȱȱȬ
mined that “the term ‘equitable’ means ‘appropriate.’” Id.
(quoting Hernandez, 942 F.2d at 1226). For that reason, “this
court has held that the limitations in section 1452(b) on appeal
are identical to the limitations in section 1447.” Townsquare
Media, Inc. v. Brill, 652 F.3d 767, 769 (7th Cir. 2011).
Here, both § 1447(d) and § 1452(b) foreclose our ability to
ȱ ȱ ȱ Ȃȱ Ĝȱ ȱ ȱ remand order.

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8 Nos. 21-1084, et al.
The bankruptcy court remanded CitiMortgage’s foreclosure
proceeding under § 1447(c) because the court lacked subject
Ĵȱȱȱȱǯȱȱȱǰȱ ȱȱ Ȭ
out authority under § 1447(d) ȱ ȱ ȱ bankruptcy
court’s remand order. Because a dismissal for lack of subject
ĴȱȱȱȃǰȄȱ§ 1452(b) also precludes
ȱ ǯȱ
To avoid this conclusion, Davis argues that jurisdiction ex-
ists under the Supreme Court’s decision in City of Waco v.
United States Fidelity & Guaranty Co., 293 U.S. 140 (1934). 4
There, the district court issued “a single decree embodying
three separate orders,” including an order dismissing one of
the defendants and a remand order. Id. at 142–43. While the
Court determined that the remand ordeȱ ȱȱǰȱ
ȱȱȱȱȱȱȱȱ ȱ ȱ
because it preceded the remand order “in logic and in fact.”
Id. at 143. Davis contends that, by extension, his appeal of the
ȱȱęȱ ȱWaco because he contests the bank-
ruptcy court’s conclusion that his discharge did not cover the
ȱ ȱ rather than disputing the court’s
holding ȱȱȱȱĴȱǯȱ
Davis’s invocation of Waco does not persuade. In rejecting
a similar argument, the Court has expressly stated that “Waco
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ order separate
ȱȱ ȱȱǯȄȱPowerex Corp. v. Reli-
ant Energy Servs., Inc., 551 U.S. 224, 236 (2007); see also Lindner
v. Union Pac. R.R. Co., 762 F.3d 568, 571 (7th Cir. 2014). Simi-
larly, the bankruptcy court here did not issue an order sepa-
ȱ ȱ ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ¢ȱ
4 Our research yielded that City of Waco has been cited by this circuit
only seven times since the Court’s decision in 1934.

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Nos. 21-1084, et al. 9
ȱȱ ǯ ȱ ȱȱȱ the un-
derlying purpose of Waco is to ensure that appealable issues
ȱȱȱ , that rationale is equally absent from this
case. Davis had every opportunity to timely appeal the court’s
conclusion that his bankruptcy discharge did not cover the
ȱ ȱǯȱYet, he chose not to. Davis cannot
ȱȱȱȱȱȱȱ¢ȱȱȱ
ȱ ǯ
Even if our court had jurisdiction over the bankruptcy
Ȃȱȱǰȱ ȱ ȱęȱȱȱ ȱthe
right to object. ȱȱęȱȱmotion to remand
the foreclosure proceeding, the bankruptcy court instructed
ȱȱ ȱ ¢ȱȱȱȱ by October 25,
ŘŖŗşǯȱȱ¢ȱȱȱ , but Davis failed to respond to
the motion to remand. In briefs before this court, Davis admits
ȱ ȱȱ ȱȱȱȱĴȱǯȱ
So, ȱneed not entertain that objection.
III
ȱȱ¢ȱȱȱ¢ȱȂȱĴȬ
¢ȱȱȱȱ ȱȱȱȱȱȱ
because he had a reasonable basis to contend that his bank-
¢ȱȱȱȱȱ ȱgage.
In the bankruptcy court’s October 28, 2019 order remand-
ing CitiMortgage’s foreclosure proceeding to state court, the
bankruptcy court ȱ ȱ ȱ Ĵ¢ȱ ȱ
and costs in an undetermined amount. On November 13,
2019, Davis appealed the bankruptcy court’s order, including
ȱ ȱ ȱ ȱ ȱ Ĵ¢ȱ ǯȱ Ȭ
gage then moved to dismiss. In addition to defending the re-
mand order, CitiMortgage argued that the fees and costs
ȱ ȱ ȱ Ĝ—both because Davis’s appeal of

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10 Nos. 21-1084, et al.
ȱ ȱ ȱ , as ȱ ęȱ ȱ ȱ ȱ
ȱȱȱȱ¢ȱȱȱȱȱȱȱȱȬ
ǰȱȱȱȱ ȱ ȱȱsince Davis had no
basis to assert federal jurisdiction justifying removal. In re-
ǰȱȱęȱȱȱȱȱȱȱ
of the remand order, but ȱneglected entirely the ĴȬ
ney ȱȱȱ ǯȱ
As our court has stated repeatedly, arguments that are un-
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ .
Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013) (per cu-
riam); see ěȱǯȱȱ ǯȱǯ, 675 F.3d 709, 718 (7th Cir.
2012). Here, in the face of CitiMortgage’s contentions to the
¢ǰȱȱěȱȱȱȱȱȱȱ
ȱ ¢ȱȱ¢ȱȂȱȱȱȱ ȱ ȱȬ
proper. Davis’s position ȱ ȱĴ¢ȱȱ ȱ
ȱ¢ȱǲȱȱ ȱot developed at all. So,
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
court.
Ȃȱȱȱȱȱȱȱ ȱȱ ȱȱ
an additional reason. In his statement of issues before the dis-
trict court, Davis recognized that the basis for the attorney
fees ȱagainst him ȱȱȃǽǾȱȱȱȱȬ
sonable basis for asserting federal question jurisdiction.” But
before our court, Davis asserts ȃǽǾȱȱȱȱȱ ȱ
ȱ. . . that the bankruptcy court deemed [his] challenge to
its ruling excepting [CitiMortgage]’s debt from discharge as
objectively unreasonable.” ȱȱ ǰȱȱ ȱȱ
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ȭ
ruptcy court’s determination that his substantive claim—ra-
ther than his inability to establish federal jurisdiction— ȱ
unreasonable. “[R]aising an issue in general terms is not suf-
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ

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Nos. 21-1084, et al. 11
previously presented.” Puffer, 675 F.3d at 718. Because Davis’s
argument against the ȱȱȱ ȱȱȱȱ
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱȱȱǯȱ
IV
Finally, Davis challenges the district court’s dismissal of
his suit agaȱǰȱ ȱed violations under
the Federal Debt Collections Practice Act, the Illinois Con-
sumer Fraud and Deceptive Practices Act, and of the 2018
bankruptcy discharge injunction. Yet, as the district court
noted, and Davis does not dispute, all three of his claims
ȱȱȱȱȱ ȱȱȱ ȱȱ
ȱȱ¢ȱȱ¢ȱǯȱȱ ȱȱȬ
lution of In re Davisǰȱ ȱhe did not appeal. Davis’s Ĵȱ
to challenge the bankruptcy court’s holding at this stage con-
ȱȱȱȱĴǯ
To avoid this conclusion, Davis makes three arguments.
First, he asserts the bankruptcy court’s dismissal of his adver-
sary action in In re Davis ȱȱȱęȱȱȱtherefore
ȱȱȱȱȱěǯȱ support, Davis points
to ĵȱ oup, Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582
(2020)ǰȱȱ ȱȱCourt ¡ȱȱę¢ȱȱȱȬ
ruptcy proceeding in that case based on certain factors. Id. at
588–89. Those factors include a proceeding commencing ȱ
ȱęȱȱȱǰȱ ȱby procedural steps, and re-
sulting in a dispositive decision based on the application of a
legal standard. Without those factors here, Davis argues the
bankruptcy court’s ȱ ȱ ȱ ȱ ęȱ ǯȱ But this
overcomplicates the analysis. The ĵ ȱ ȱȱȱ
ȱ ȱȱȱ ȱę, even though the un-
derlying case remained pending. Here, there is no such

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12 Nos. 21-1084, et al.
complexity. The bankruptcy court dismissed the adversary
ǰȱȱȱȱȱȱǰȱȃǽǾȱęȱȱ
of any adversary proceeding is appealable, as it is equivalent
to a stand-ȱ ǯȄȱFifth Third Bank, Ind. v. Edgar Cnty.
Bank & Tr., 482 F.3d 904, 905 (7th Cir. 2007).
Second, Davis characterizes the bankruptcy court’s analy-
sis regarding the scope of his bankruptcy discharge as dicta.
But this mischaracterizes the court’s decision. The bankruptcy
court dismissed the adversary proceeding because it had de-
volved into a “ȱ -¢ȱ ȱ ȱ ȱ Ȅȱ ȱ
“[did] not implicate bankruptcy rights.” This ȱ ȱ
reached because Davis’s bankruptcy discharge did not impli-
ȱȱȱ ȱǯȱȱȱǰȱȱȂȱ
¢ȱȱȱȱȱȱ¢ȱȱ ȱȱ
to the court’s decision.
Third, ȱȱȱ ȱied adequate notice and
an opportunity to respond to the bankruptcy discharge issue
because CitiMortgage did not ę a motion or objection chal-
lenging his right to a discharge. But this argument overlooks
ȱȱ ȱȱ ȱ¢ȱȱȱȱȱȱȬ
charge before the court. In a 2016 brief asking to reopen the
bankruptcy case, Davis stated his “pending adversary case
ȱȱȱȱȱȂȱǱȱ ȱȱȬ
cluded the debt asserted by CitiMortgage.” While the bank-
ruptcy court agreed to reopen Davis’s bankruptcy case, the
court made sure to note in its decision ȱȃǽǾȱȱ ȱ
CitiMortgage appears to be such a debt that is not subject to
discharge.” As a result, Davis has no basis to contend that he
did not have constitutional¢ȱĜ notice that the bank-
¢ȱ ȱ ȱ ȱ ęȱ ȱ ȱ ȱ ȱ
scope of his bankruptcy discharge in the adversary proceed-
ing. What is more, if Davis believed that the decision in In re

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Nos. 21-1084, et al. 13
Davis had denied him due process, he had every right and op-
¢ȱȱȱȱ¢ȱȂȱęȱǯȱNev-
ertheless, Davis did not appeal that ruling, and it is too late to
ȱȱ ǯȱ
* * *
ȱȱǰȱ ȱDISMISS the appeal of the remand or-
ǰȱȱ ȱA FFIRM the ȱȱȱ and the district
Ȃȱ ȱ ȱ ȱ ȱ Ȃȱ suit against
CitiMortgage.

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Citi Mortgage, Inc . v. JEROME M. DAVIS and LYNNE TERNIOR -DAVIS

Gesamter Gesetzestext

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