Marks, Daniel v. Union Bank Of Blair et al

Filing 4

ORDER dismissing 1 complaint for lack of subject matter jurisdiction. Amended complaint due 7/6/2017. Signed by District Judge Barbara B. Crabb on 6/19/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DANIEL A. MARKS,
OPINION and ORDER
Plaintiff,
17-cv-367-bbc
v.
UNION BANK OF BLAIR,
CARL AXNESS, DENNIS STEPHENSON,
LOREN RAUSCH and ANDREW SEMB,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Daniel Marks has filed a complaint against defendant Union Bank of
Blair and several individuals he says are officers of the bank. Because plaintiff is proceeding
in forma pauperis, I must screen the complaint in accordance with 28 U.S.C. § 1915(e)(2).
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013).
The body of plaintiff’s complaint is only one page long and it includes little context
or explanation. However, from the complaint and the three attachments (an administrative
grievance plaintiff filed, a letter accompanying the grievance and a response to the grievance
from defendant Carl Axness), I understand plaintiff to be alleging that he had a mortgage
from the bank and that he is dissatisfied with defendants’ handling of the mortgage in
numerous respects. He says that defendants “intentionally inflicted injury” on him, leading
to the loss of his home and business; threatened to “kick his ass” and “remove[d] [him] from

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[the] bank”; “attempt[ed]” to take items from him that had been “awarded to [him] in
bankruptcy proceedings”; lied during bankruptcy proceedings; “defrauded” him; and sold
items belonging to him. Although plaintiff does not say expressly that the bank foreclosed
on his property, Wisconsin’s electronic court records database shows that the bank obtained
a foreclosure judgment against plaintiff in 2015 and a sale was confirmed in 2006. Union
Bank of Blair v. Marks, No. 2013cv255 (Trempeleau Cty. Cir. Ct.), available at
https://wcca.wicourts.gov.
The first question raised by plaintiff’ allegations is whether they provide a basis for
exercising subject matter jurisdiction, which is a threshold requirement for every case filed
in federal court. State of Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir. 1998)
(“Subject-matter jurisdiction is the first question in every case, and if the court concludes
that it lacks jurisdiction it must proceed no further.”). Plaintiff does not allege that he and
defendants are citizens of different states, so there is no diversity jurisdiction under 28
U.S.C. § 1332. Instead, plaintiff says that the court has jurisdiction because he is a “disabled
senior citizen” and he is claiming “discrimination based on age and disability.” In the civil
cover sheet accompanying his complaint, plaintiff cites a federal statute, the Equal Credit
Opportunity Act, suggesting that he believes jurisdiction is present under 28 U.S.C. § 1331,
which allows federal courts to hear cases raising claims under federal law.
The Equal Credit Opportunity Act prohibits a creditor from discriminating against
a credit “applicant” because of the applicant’s race, color, religion, national origin, sex,
marital status or age; because the applicant receives some or all of his or her income from a

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public assistance program; or because the applicant exercised a right protected by the
Consumer Credit Protection Act.

15 U.S.C. § 1691(a).

Although the Equal Credit

Opportunity Act does not prohibit discrimination because of an applicant’s disability, I
understand petitioner to be alleging that he receives Social Security benefits, which would
qualify as income from a public assistance program. An “adverse action” that qualifies as
discrimination under the Act may include “a denial or revocation of credit, a change in the
terms of an existing credit arrangement, or a refusal to grant credit in substantially the
amount or on substantially the terms requested.” 15 U.S.C. § 1691(d)(6).
One problem with plaintiff’s claim under the Equal Credit Opportunity Act is that
he does not identify any particular action that any of the defendants took because of his age
or receipt of Social Security benefits, let alone an action that is listed in § 1691(d)(6).
Without such allegations, plaintiff does not state a claim for discrimination under the Act.
Plaintiff also includes an allegation that “defendant acted out of retaliation for
plaintiff’s whistle blower complaint.” Cpt. ¶ 6, dkt. #1. Plaintiff does not explain what he
means by this, but presumably he is referring to the administrative grievance that he filed
with the Wisconsin Department of Financial Institutions, which he attached as an exhibit
to his complaint in this court. Cpt. dkt. #1-1. In the grievance, plaintiff alleges that
defendant Loren Rausch “promised . . . that [his] status at [the bank] would be brought
current by [his] vacant land sale,” but, after the sale, “they decided to leave [him] in serious
arrears.”
This allegation does not state a claim under the Equal Credit Opportunity Act. As

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an initial matter, plaintiff does not identify any particular act by any particular defendant
that was motivated by plaintiff’s administrative complaint, so plaintiff has not provided fair
notice of his claim. A more fundamental problem is that the Act does not provide general
“whistle blower” protection as plaintiff suggests. E.g., Haug v. PNC Financial Services
Group, Inc., 2013 WL 978144, at *6 (N.D. Ohio 2013) (Act did not protect plaintiff’s
“report outlining irregularities in the bank's Columbus loan center”); Obi v. Chase Home
Finance, LLC, 2011 WL 529481, at *6 (N.D. Ill. 2011) (Act did not protect lawsuit plaintiff
filed). Rather, the Act prohibits retaliation for an applicant’s exercise of a right under the
Consumer Credit Protection Act. Plaintiff does not cite any provision of that Act that
protects the right of a consumer to file an administrative complaint with a state agency and
my own review of the Act did not reveal an applicable provision. More generally, I am not
aware of any federal statute that would protect plaintiff’s alleged conduct.
The Equal Credit Opportunity Act is the only federal law that plaintiff cites in his
complaint. Although plaintiff is not required to identify a particular legal theory at this stage
of the proceedings, I am not aware of any other federal law under which plaintiff could
proceed. Some of plaintiff’s allegations suggest that he believes defendants violated state laws
related to fraud, conversion and intentional infliction of emotional distress, but violations
of state law do not provide a basis for exercising jurisdiction under § 1331.
Without a basis for jurisdiction, plaintiff cannot proceed in this court. Although it
seems unlikely that plaintiff could add allegations to his complaint that would provide a
jurisdictional basis, I will give him an opportunity to try.

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If plaintiff chooses to file an amended complaint, he will face another jurisdictional
obstacle, which is called the Rooker-Feldman doctrine. Under that doctrine, a party cannot
maintain a federal lawsuit to challenge a state court judgment, including a foreclosure.
Mains v. Citibank, N.A., 852 F.3d 669 (7th Cir. 2017). Plaintiff includes so few facts in his
complaint that it is difficult to tell whether any of his claims are independent of the state
court foreclosure judgment, but if any claims in plaintiff’s amended complaint seek to
undermine that judgment, those claims will have to be dismissed.

ORDER
IT IS ORDERED that plaintiff Daniel Marks’s complaint is DISMISSED for lack of
subject matter jurisdiction. Plaintiff may have until July 6, 2017, to file an amended
complaint showing that jurisdiction is present. If plaintiff fails to respond by July 6, I will
direct the clerk of court to enter judgment and close the case.
Entered this 19th day of June, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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