Kevin Tharp v. CitiMortgage, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 19-3178
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Kevin Tharp
lllllllllllllllllllllPlaintiff - Appellant
v.
CitiMortgage, Inc.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 3, 2021
Filed: December 27, 2021
[Unpublished]
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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PER CURIAM.
Kevin Tharp filed a pro se complaint in May 2019 alleging that CitiMortgage,
Inc. violated state and federal law in servicing Tharp’s residential mortgage loan,
initiating foreclosure proceedings that resulted in a February 2013 foreclosure sale,

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and then interfering with his right of redemption. The district court1 dismissed the
action in September 2019, and Tharp appealed. With the appeal fully briefed, a three
judge panel summarily affirmed the district court in a per curiam opinion dated June
2, 2020. Tharp v. CitiMortgage, Inc., 808 F. App’x 400 (8th Cir. 2020). Judgment
was entered on June 5. Tharp’s timely petition for rehearing or rehearing en banc was
denied on July 13, and our mandate issued July 20, 2020.
On November 2, 2021 the Clerk of Court notified the parties that one member
of the panel had learned that a family member’s SEP-IRA had purchased Citigroup
stock in June 2020, which required the judge’s retroactive recusal in this case under
the Codes of Conduct for United States Judges. See Advisory Opinion 71 of the
Judicial Conference Codes of Conduct Committee. Tharp’s response, filed November
19, asserted that “[t]he Courts failed me on this one,” and demanded compensation
for “what was stolen from me.” A special panel of this court vacated the June 5, 2020
judgment, recalled the July 20 mandate, and reopened the case on November 30. The
case was reassigned to this panel.
We have carefully considered the entire record on appeal, including the initial
briefs, Tharp’s 2020 petition for rehearing, and his response to the November 2021
recusal notice. Reconsidering Tharp’s claims on appeal de novo, we again affirm the
district court and adopt the prior panel’s vacated opinion:
Kevin Tharp appeals the district court’s dismissal of his pro se
action against CitiMortgage, Inc. Upon careful de novo review, we
affirm. We agree that Tharp failed to state a claim regarding
interference with his right to redemption, as he did not plead facts
sufficient for the court to infer that CitiMortgage was liable for any
wrongdoing. See Minn. Stat. § 580.23; Ashcroft v. Iqbal, 556 U.S. 662,
1The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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678 (2009). We also agree that Tharp’s claims arising under the Real
Estate Settlement Procedures Act, and his state law claims for fraud and
intentional infliction of emotional distress, were time-barred. See 12
U.S.C. § 2614; Minn. Stat. §§ 541.05, 541.07. Finally, we deny the
request in Tharp’s reply brief to supplement the record on appeal. See
Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir.
1993).
The judgment is affirmed. See 8th Cir. R. 47B.
We likewise affirm the denial of Tharp’s petition for panel rehearing of this decision.
The denial of Tharp’s July 2020 petition for rehearing en banc remains vacated, but
that petition is mooted by the order reopening the case and this decision. Tharp may
of course petition for panel and/or en banc rehearing of this decision.
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