Hollowell v. Bornkempt et al

Filing 41

OPINION AND ORDER: Court GRANTS 8 , 20 , 32 Motions to Dismiss and DISMISSES Hollowell's complaint against all defendants, WITHOUT PREJUDICE. The Clerk is DIRECTED to close this case and enter judgment in accordance with this order. Signed by Judge Jon E DeGuilio on 3/26/2018. (Copy mailed to pro se party) (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Terrance Hollowell

)
)
)
)
)
)
)
)
)
)

Plaintiff, pro se,
v.
Joel E. Bornkamp, Timothy D. McKay,
Robert E. Altman III, April N. Pinder,
Phyllis A. Carmer, Bradley C. Crosley of
Reisenfeld & Associates, LPA, LLC;
David J. Jurkiewicz, Christina M. Bruno of
Bose, McKinney & Evans, LLP; and
Louis Chronowski, Jordan Huttenlocker,
Maria A. Diakoumakis of Dykema Gossett
PLLC,

Case No. 3:17-CV-606 JD

Defendants.
OPINION AND ORDER
Plaintiff Terrance Hollowell filed a pro se complaint against a number of Defendants,
asking this Court to find that a prior state court foreclosure on his residence was wrongful, to
vacate and set aside the resulting foreclosure sale, to cancel the related sheriff’s sale 1, and to
quiet title in his favor against all defendants. [DE 1 at 9] Basically, he wants to return to his same
position before the state foreclosure proceeding. As far as causes of action go, Hollowell first
alleges that each of the defendants violated his Constitutional rights by “preparing and filing
false documents, and foreclosing upon the Subject Property without having legal authority and/or
proper documentation to do so.” [DE 1 ¶ 23] He also alleges that the defendants knew or should

1

The sheriff’s sale had not yet happened when Hollowell filed his complaint. He sought emergency
injunctive relief from the then-upcoming sheriff’s sale [DE 1-2], but the Court denied said relief. [DE 4]

1

have known about this lack of legal authority, and that they thereby committed fraud by
facilitating the foreclosure. [DE 1 ¶¶ 25-47] 2
Defendants in this case are various attorneys from three law firms that played a part in the
underlying state court foreclosure action: the “Reisenfeld” defendants (Joel E. Bornkamp,
Timothy D. McKay, Robert E. Altman III, April N. Pinder, Phyllis A. Carmer, and Bradley C.
Crosley); the “Bose” defendants (David J. Jurkiewicz and Christina M. Bruno); and the
“Dykema” defendants (Louis Chronowski, Jordan Huttenlocker, and Maria A. Diakoumakis).
The defendants have filed three separate motions to dismiss. [DE 8; 20; 32] All three sets
of defendants advance the arguments that Hollowell’s complaint should either be dismissed for
lack of subject matter jurisdiction under the Rooker-Feldman doctrine or precluded via res
judicata. [DE 9; 21; 33] The Bose and Dykema defendants further argue that Hollowell has
failed to state claims for fraud and for a constitutional deprivation under 42 U.S.C. § 1983. [DE
21; 33] For the reasons stated herein, the Court lacks subject matter jurisdiction to hear this case
because doing so would amount to entertaining an appeal of Hollowell’s state foreclosure action.
Therefore, his complaint will be dismissed by way of the Rooker-Feldman doctrine.

2

Hollowell plastered the following list of “violations” in the case caption of his complaint: (1)
Constitutional guaranteed rights – deprivation of due process; (2) fraud; (3) fraud upon the Court; (4)
negligent misrepresentation; (5) violation of business and professional code of ethics; (6) breach of
contract; (7) breach of forbearance contract; (8) violation of the RICO Act; (9) violation of the Truth in
Lending Act; (10) mortgage transfer violation; (11) deceptive acts and practices; (12) violation of fair
debt collection practices; (13) breach of implied covenant of the good faith and fair dealing; and (14)
unjust enrichment. However, the allegations within his complaint contain no substance as to any of these
“violations” apart from the first two listed.

2

FACTUAL BACKGROUND 3
On February 29, 2008, Hollowell executed and delivered a promissory note to Residential
Loan Centers of America, Inc. (“RLCA”). As security for the debt created by the note, Hollowell
executed a mortgage on the subject property (1314 Hudson Street, Elkhart, Indiana) in favor of
Mortgage Electronic Registration Systems (“MERS”) as nominee for RLCA. The mortgage was
recorded in the Office of the Recorder of Elkhart County, Indiana on March 3, 2008 as
Instrument No. 2008-05486.
RLCA endorsed the note specially to JPMorgan Chase Bank, N.A. (“JPM”). JPM
endorsed the note in blank. MERS, as nominee for RLCA, assigned its interest in the mortgage
to Chase Home Finance, LLC (“Chase”) on October 24, 2008. The Assignment was recorded in
the Elkhart County Recorder’s Office on November 5, 2008 as Instrument No. 2008-26093.
Hollowell contests the validity of this assignment.
On April 16, 2012, JPM filed a Complaint on Note and to Foreclose Mortgage against
Hollowell and Cynthia Harris (a co-borrower) in Elkhart Superior Court, Cause No. 20D011204-MF-00304. JPM was represented therein by the Reisenfeld and Bose defendants, and by
defendant Huttenlocker. Hollowell and Ms. Harris were served on April 24, 2012, however, they

3

The facts stated herein are taken from Hollowell’s complaint and from the various cases
preceding this action, of which the Court may take judicial notice. In re FedEx Ground Package
Sys., Inc., Employment Practices Litig., No. 305-MD-527, 2010 WL 1253891, at *4 (N.D. Ind.
Mar. 29, 2010) (“Court documents from another case may be used to show that the document
was filed, that party took certain position, and that certain judicial findings, allegations or
admissions were made.”); see also Gen. Elec. Capital v. Lease Resolution, 128 F.3d 1074, 1081
(7th Cir. 1997) (“[T]he most frequent use of judicial notice of ascertainable facts is in noticing
the contents of court records.... Like other court records, judicial approval of a class action
settlement is an appropriate subject for judicial notice because it is a source whose accuracy
cannot reasonably be questioned.”).
3

failed to timely answer the foreclosure complaint and the state court granted a default judgment
and decree of foreclosure on November 14, 2012. 4
The instant matter is but the latest installment in a string of lawsuits (filed by Hollowell)
related to and challenging the state foreclosure action. On May 25, 2013, Hollowell and Ms.
Harris filed a federal lawsuit against JPM in this District, Case No. 3:13-cv-490. The court
dismissed that case on the basis of res judicata. Then, Hollowell pursued two distinct adversary
proceedings in U.S. Bankruptcy Court for this District, one in 2013 (Case No. 13-03028) and the
other in 2015 (Case No. 15-03048). The court dismissed both actions, describing Hollowell’s
filings and conduct in the second case as “abusive” because he used the court “as a vehicle to
obstruct the Defendants’ efforts to enforce their judgments and to unnecessarily protract the
proceedings.” [Case No. 15-03048, DE 29 at 2-3] More recently, on March 17, 2017, Hollowell
filed a state court action in Elkhart Superior Court (Cause No. 200002-1703-cc-432) against the
exact same defendants as here. The state court dismissed that action a month later on the basis of
res judicata; essentially, Hollowell brought the same claims as in his earlier federal case, and
merely substituted JPM’s former foreclosure counsel for the bank itself. Finally, Hollowell filed
the instant lawsuit on August 7, 2017. [DE 1]

4

Hollowell filed two motions to set aside the foreclosure judgment, but the state court denied them on
December 5, 2014, because Hollowell failed to offer any evidence of excusable neglect that would
otherwise justify his failure to appear and respond to the foreclosure complaint. He also twice appealed
the foreclosure proceedings to the Indiana Court of Appeals (unsuccessfully), filed an emergency motion
for a stay with the same (denied), and filed a motion to “correct error” in the foreclosure judgment, for
which he was found in direct contempt of court.

4

STANDARD
Rule 12(b)(1) 5 authorizes dismissal of claims over which the Court lacks subject matter
jurisdiction. In analyzing a motion to dismiss, the Court must accept as true all well-pled factual
allegations and must draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Further, “[t]he district court may properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id.
(citations omitted). The burden of establishing proper federal subject matter jurisdiction rests on
the party asserting it, which in this case is Mr. Hollowell. Muscarello v. Ogle Cnty. Bd. of
Comm’rs, 610 F.3d 416, 425 (7th Cir. 2010).
Even in the absence of a Rule 12(b)(1) motion, the Court is “obligated to review its own
jurisdiction sua sponte.” Caterpillar Fin. Servs. Corp. v. Peoples Nat. Bank, N.A., Civil No. 10298, 2011 WL 5403501, *1 (S.D. Ill. Nov. 8, 2011) (citing Fed. R. Civ. P. 12(h)(3); Hammes v.
AAMCO Transmissions, Inc., 33 F.3d 774, 778 (7th Cir. 1994) (“the court has an independent
duty to satisfy itself that it has subject-matter jurisdiction”).
DISCUSSION
The Court lacks subject matter jurisdiction over this action under the Rooker-Feldman
doctrine, which holds that “lower federal courts do not have subject matter jurisdiction over
claims seeking review of state court judgments.” Long v. Shorebank Dev. Corp., 182 F.3d 548,
554 (7th Cir. 1999). This doctrine “requires a party seeking review of a state court judgment or
presenting a claim that a state judicial proceeding has violated their constitutional rights to

5

While the Dykema and Reisenfeld defendants do not cast their motions as ones for dismissal under Rule
12(b)(1), the Court nonetheless has an independent duty to verify that it has subject matter jurisdiction.
Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774, 778 (7th Cir. 1994).

5

pursue relief through the state court system and ultimately to the Supreme Court.” Id. “Simply
put, the Rooker-Feldman doctrine precludes lower federal court jurisdiction over claims seeking
review of state court judgments because no matter how erroneous or unconstitutional the state
court judgment may be, the Supreme Court of the United States is the only federal court that
could have jurisdiction to review a state court judgment.” Taylor v. Fed. Nat’l Mortg. Ass’n, 374
F.3d 529, 532 (7th Cir. 2004) (internal quotations and alterations omitted). That is true even
where, as here, a plaintiff asserts that the state court judgment violated his civil rights. Holt v.
Lake Cnty. Bd. of Comm’rs, 408 F.3d 335, 336 (7th Cir. 2005) (“We have repeatedly stated that a
litigant may not attempt to circumvent the effect of Rooker-Feldman and seek a reversal of a
state court judgment simply by casting the complaint in the form of a civil rights action.”
(internal quotation omitted).
“In assessing the applicability of the Rooker-Feldman doctrine in a particular case, ‘the
fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff
resulted from the state court judgment itself or is distinct from that judgment.’” Long, 182 F.3d
at 555 (quoting Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir. 1996)). Put another way, the
question is “whether the ‘federal plaintiff seeks to set aside a state court judgment or whether he
is, in fact, presenting an independent claim.’” Taylor, 374 F.3d at 532 (quoting Kamilewicz v.
Bank of Boston Corp., 92 F.3d 506, 510 (7th Cir. 1996)). “Claims that directly seek to set aside a
state court judgment are de facto appeals and are barred without additional inquiry.” Id.; see also
Holt, 408 F.3d at 336 (“[T]he Rooker-Feldman doctrine precludes federal subject matter
jurisdiction only when, after state proceedings have ended, a losing party in state court files suit
in federal court complaining of an injury caused by the state-court judgment and seeking review
and rejection of that judgment.”).

6

Here, Hollowell’s claims fit squarely within those barred by the Rooker-Feldman
doctrine. Hollowell does not allege any injury apart from the state court foreclosure—if the
judgment had been in his favor, he would have never suffered an injury in the first place. See
Holt, 408 F.3d at 336 (finding that Rooker-Feldman applied where absent the state court
judgment, the plaintiff “would not have the injury he now seeks to redress”). His complaint
explicitly asks this Court to vacate the foreclosure judgment, declare it “wrongful,” and then
quiet title of the subject property in his favor. [DE 1 at 9] So, he does not present an independent
claim, as evidenced by his many (and repetitive) response briefs in which he argues that some
sort of alleged fraud poisoned the state foreclosure proceeding itself. [DE 23; 31; 34; 36-38].
Rather, he improperly seeks to set aside the state court foreclosure judgment. Taylor, 374 F.3d at
532. The only federal court that can do so is the Supreme Court, and only after Hollowell has
exhausted his appeals through the state system.
Hollowell offers only a single counter to defendants’ Rooker-Feldman arguments: “Fraud
has always superseded fictitious claims of protections under the Rooker-Feldman doctrine.” [DE
23 at 5; 36 at 5; 37 at 5; 38 at 5] In other words, he argues that Rooker-Feldman does not apply
here because the state court foreclosure was procured by fraud. He cites no support for this
theory, but even assuming that the foreclosure action did harbor fraud, that would make no
difference: “The Rooker-Feldman doctrine is concerned not with why a state court’s judgment
might be mistaken (fraud is one such reason; there are many others) but with which federal court
is authorized to intervene. The reason a litigant gives for contesting the state court’s decision
cannot endow a federal district court with authority; that’s what it means to say that the RookerFeldman doctrine is jurisdictional.” Iqbal v. Patel, 780 F.3d 728, 729 (7th Cir. 2015). Thus, the

7

Rooker-Feldman doctrine applies here. The Court therefore lacks subject matter jurisdiction over
Hollowell’s claim and must dismiss the case on that basis.
CONCLUSION
For the reasons stated herein, the Court GRANTS defendants’ motions [DE 8; 20; 32]
and DISMISSES Hollowell’s complaint against all defendants, without prejudice. 6 The Clerk is
DIRECTED to close this case enter judgment in accordance with this order.

SO ORDERED.
ENTERED: March 26, 2018
/s/ JON E. DEGUILIO
Judge
United States District Court

6

“The Rooker–Feldman doctrine is a rule of federal jurisdiction. A suit dismissed for lack of jurisdiction
cannot also be dismissed ‘with prejudice’; that's a disposition on the merits, which only a court with
jurisdiction may render.” Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004).

8