doctrine. Defendant further contends that any remaining claims are barred by res judicata
(claim preclusion) and should be dismissed pursuant to Rule 12(b)(6).

1, Rooker-Feldman Doctrine

“The Rooker-Feldman doctrine is jurisdictional in nature” and “prevents lower
federal courts from reviewing state-court judgments, over which only the United States

Supreme Court has federal appellate jurisdiction.” Crawford v. Countrywide Home

Loans, Inc., 647 F.3d 642, 645 (7th Cir. 2011). “This narrow doctrine deprives federal

district and circuit courts of jurisdiction to hear ‘cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those

judgments.’” Commonwealth Plaza Condo. Ass’n v. City of Chi., 693 F.3d 743, 745 (7th

Cir. 2012) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005)). However, “[t]he doctrine does not prevent state-court losers from presenting
independent claims to a federal district court, even if the new claims involve questions
related to those in the original state court proceedings.” Crawford, 647 F.3d at 645; see
also McDonald v. White, 465 F, App’x 544, 547 (7th Cir. 2012) (“[The Rooker-Feldman
doctrine] allows plaintiffs to litigate in the federal system if they were not afforded a
reasonable opportunity to raise their claims in state court” (internal quotation marks and
citations omitted)).

In several claims throughout the Complaint, Plaintiff requests, inter alia, relief
from charges for the cost of “locking [him] out of [his] property, and performing other

default property services,” Compl. { 86, and “an accounting of any charges levied to [his]



underlying facts at issue here were addressed during the state-court foreclosure
proceedings. As such, the facts are undoubtedly related in time, space, origin, and
motivation. The facts also form a convenient trial unit, and “their treatment as a unit
conforms to the parties’ expectations” under the mortgage agreement. Hayes, 670 F.3d at
813.

The Court finds that there is an identity of cause of action as these are the same
operative facts that were actually litigated, or could have been raised and determined by

the state-court. See Stanley v. Hollingsworth, 307 F. App’x 6, 9 (7th Cir. 2008) (finding

reasserted counterclaims from state-court foreclosure action barred by res judicata
because the claims were merely repeated in federal court and finding claim for “force
placing” insurance on plaintiff's home barred by res judicata because Plaintiff could have
raised it in the foreclosure action and “advanc{ing] a federal law theory to support these

claims does not undercut claim preclusion”); Dye y. Ameriquest Mortg. Co., 289 F.

App’x 941, 944 (7th Cir. 2008) (applying the transactional test for claim preclusion under
Wisconsin law and finding that plaintiffs claims before the bankruptcy court as well as
claims under the Truth in Lending Act were subject to claim preclusion due to the prior
state-court foreclosure action); Byrd v. Homecomings Fin. Network, 407 F. Supp. 2d
937, 945 (N.D, Ill. 2005) (finding that res judicata precluded plaintiffs claims under the
Truth in Lending Act, Illinois common law and the ICFA, and the FDCPA as a result of

the plaintiff's prior Illinois state-court foreclosure action). Accordingly, the Court finds

that res judicata bars all of Plaintiffs claims.



doctrine of [res judicata or] claim preclusion is premised on the idea that, when a claim
has been fully litigated and come to judgment on the merits, finality trumps.” Czariecki
vy. City of Chi., 633 F.3d 545, 548 (7th Cir. 2011) (quoting In re Ingersoll, Inc., 562 F.3d
856, 861 (7th Cir. 2009)) (alternation in original). “[Courts] apply state res judicata
principles when the earlier action in question was decided in state court.” Id. at 548 n.3.
“The Illinois Supreme Court . . . deems a prior judgment conclusive not only to matters
that were actually determined in the action resulting in that judgment, but also as to other

matters that could have been raised and determined.” Abner v. Ill. Dep’t of Transp., 674

F.3d 716, 720 (7th Cir. 2012). “That rule applies to every question relevant to and falling
within the purview of the original action, including any defense that could have been
raised with due diligence.” Id.

As an initial matter, Plaintiff argues that res judicata is inapplicable to the instant
action because his claims could not have been brought in state-court as this Complaint
was filed as a putative class action under the federal Class Action Fairness Act (the
“CAFA”), 28 U.S.C. § 1332(d)(2). The Court rejects this argument because the CAFA
does not affect the substantive claims brought under its jurisdiction. “A class action, no
less than traditional joinder (of which it is a species), merely enables a federal court to
adjudicate claims of multiple parties at once, instead of in separate suits. . . . [I]t leaves
the parties’ legal rights and duties intact and the rules of decision unchanged.” Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1443 (2010).

Accordingly, all of the individual claims Plaintiff raises in his Complaint could have been



home loan account[] by Defendants for work performed in the course of Defendants’
above-described unlawful home entries and lockouts,” id. § 94.

Defendant contends that these costs were property maintenance fees, charged to
Plaintiff as part of the judgment in the state-court foreclosure action. Indeed, an affidavit
attached to the state-court Judgment for Foreclosure and Sale provides that $470.00 of the
judgment is derived from property maintenance fees. Def.’s Mem. in Supp. of Its Mot, to
Dismiss Ex. 1. Specifically, Defendant alleges that the property maintenance fees
recovered in the state-court judgment covered the costs incurred in securing and
“winterizing” Plaintiff's property. According to Defendant, a process server in the
foreclosure action uncovered that Plaintiff was not residing at the property and had, in
effect, abandoned it. As a result and in accordance with the provisions of the mortgage
contract and local ordinance, Defendant alleges that it took the necessary steps to secure
the property by “winterizing” it and changing the locks.

Defendant argues that this Court is without subject matter jurisdiction to hear
Plaintiffs claims seeking recovery of the property maintenance fees because it would
constitute an improper federal district court review of a portion of the state-court
judgment. The Court agrees. To the extent that Plaintiffs claims seek recovery of
property maintenance fees awarded to Defendant as part of the state-court judgment,
those claims are barred by the Rooker-Feldman doctrine because the Court is without
jurisdiction to review that judgment.

2. Res Judicata

Defendant further alleges that all remaining claims are precluded by the doctrine

of res judicata and therefore the entirety of the Complaint should be dismissed. “‘The



Defendant argues that Plaintiffs claims are derived from facts that occurred
during the foreclosure proceeding before a final judgment and that such facts are directly
related to the underlying state-court foreclosure. Namely, Plaintiff contested the conduct
of what he now alleges to be an illegal entry or trespass in violation of both statutory and
common law.

Plaintiff appeared before the state-court and informed it that the locks at his
premises were changed. In response, the state-court ordered: (1) that the lock box be
removed within 72 hours; (2) that Plaintiff be provided keys to the property; and (3) that
Defendant (plaintiff in the state-court) provide an explanation as to who entered the
property, why, and on what authority. See Def.’s Mem. in Supp. of Its Mot. to Dismiss
Ex. 4 (Order, Apr. 11, 2011, Circuit Court of Cook County, Chancery Division, Judge
Valderrama).’ The state-court order shows that the operative facts alleged here, not only
could have been, but in fact were litigated in the state-court. The Court notes that while
originally proceeding pro se, Plaintiff was represented by counsel in the foreclosure
action prior to final judgment.

Plaintiff's remaining claims—seeking damages, declaratory relief, and injunctive
relief—arise out of the alleged unlawful entry and destruction of property that occurred
during the foreclosure proceedings between the parties. According to Defendant, the
entry, securing, and “winterization” of the property were lawful pursuant to the mortgage
agreement in order to protect its interest in the property—the same mortgage agreement

and property at issue in the foreclosure action. The state-court record reveals that the

> The Court may consider matters of pubic record and public court documents on a motion to
dismiss. See Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (“Taking judicial notice of
matters of public record need not convert a motion to dismiss into a motion for summary
judgment.”),



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
PANIPAL GIWARGIS, individually and on behalf )
of all others similarly situated, )
)
Plaintiff, )
) No. 12 CV 1945

v. )

) Hon. Charles R. Norgle
GREEN TREE SERVICING, LLC and )
DOES 1-20, )
)
Defendants. )

OPINION AND ORDER

Before the Court is Defendant Green Tree Servicing, LLC’s (“Defendant”)
motion to dismiss Plaintiff Panipal Giwargis’s (‘Plaintiff’) putative class action
complaint: (1) pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction, and (2) pursuant to Rule 12(b)(6) for failure to state a claim on which
relief can be granted. For the following reasons, the motion is granted.

I BACKGROUND
Following Plaintiff's default on his mortgage, Defendant filed a foreclosure action

against Plaintiff in Illinois state-court on April 29, 2010. See Green Tree Servicing, LLC

y. Giwargis, No, 10-CH-18501 (Ill, Cir. Ct. filed Apr. 29, 2010). While a special process
server attempted to serve Plaintiff with the foreclosure action at the address of the subject
property, the process server was informed that Plaintiff was an “absentee owner” who
had rented the property, and that Plaintiff had been out of the country for some time. See
Def.’s Mem. in Supp. of Its Mot. to Dismiss Ex. 2. Defendant claims that, because the

property appeared to be abandoned, it took steps during the foreclosure proceedings to



Il. CONCLUSION
To the extent that Plaintiff complains of injuries and damages incurred as a result
of the prior Illinois state-court foreclosure judgment, those claims are dismissed pursuant

to Rule 12(b)(1) for lack of subject matter jurisdiction in accordance with the Rooker-

Feldman doctrine. The Court finds that all remaining claims are precluded by res
judicata and are therefore dismissed pursuant to Rule 12(b)(6). Accordingly, the motion
to dismiss is granted.

IT IS SO ORDERED.

CHARLES RONALD NORGLE, Judge
United States District Court

DATE: January 10, 2013



brought in Illinois state-court,! and therefore, the claims may be subject to claim
preclusion.

“Tn Illinois, claim preclusion requires: (1) a final judgment on the merits rendered
by a court of competent jurisdiction; (2) an identity of cause of action; and (3) an identity
of parties or their privies.” Hayes v. City of Chi., 670 F.3d 810, 813 (7th Cir. 2012)
(internal quotation marks and citation omitted). The parties do not dispute that the first
and third factors are satisfied. There was a final judgment on the merits in the state-court
foreclosure action and the parties in that action are the same as the parties here.
However, Plaintiff disputes that there is an identity of cause of action under the second
factor. In order to determine the second factor, the identity of cause of action, Illinois
courts apply the transactional test. The transactional test “provides [that] ‘the assertion of
different kinds of theories of relief still constitutes a single cause of action if a single
group of operative facts give rise to the assertion of relief.’” Id. (quoting Rodgers v. St.
Mary’s Hosp. of Decatur, 597 N.E.2d 616, 621 (Ill. 1992)). “In determining whether two
complaints arose from the same transaction and operative facts, Illinois courts consider
whether the facts are related in time, space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage.” Id. (internal quotation marks and

citations omitted).

' Plaintiffs claims based on Illinois common law (conversion, trespass to chattels, trespass to
land, and declaratory and injunctive relief) and Illinois statutory law (the ICFA) could have been
alleged in Illinois state-court. In addition, Plaintiffs federal claim pursuant to the FDCPA could
have been alleged in Illinois state-court. See 15 U.S.C. § 1692k(d) (“An action to enforce
liability created by this subchapter may be brought in any appropriate United States district court .
. or in any other court of competent jurisdiction.”).



evidence.” LM Ins. Corp. v. Spaulding Enters., 533 F.3d 542, 547 (7th Cir. 2008)

(quoting Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006)).

In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff's
complaint “must actually suggest that the plaintiff has a right to relief, by providing
allegations that raise a right to relief above the speculative level.” Indep. Trust Corp. v.
Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (internal quotation marks
and citation omitted). A complaint must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
Court accepts “all well-pleaded allegations of the complaint as true and view[s] them in
the light most favorable to the plaintiff.” Indep. Trust Corp., 665 F.3d at 934 (internal
quotation marks and citation omitted). Legal conclusions or elements of the cause of
action, however, “may be disregarded on a motion to dismiss.” McCauley v. City of
Chi., 671 F.3d 611, 617 (7th Cir. 2011). “Dismissal is proper if it appears beyond doubt
that the plaintiff cannot prove any facts that would support his claim for relief.” Wilson

v. Price, 624 F.3d 389, 392 (7th Cir. 2010) (internal quotation marks and citation

omitted). “It is true that res judicata is not one of the affirmative defenses that Rule 12(b)
permits to be made by motion rather than in the answer to the complaint. But when an
affirmative defense is disclosed in the complaint, it provides a proper basis for a Rule

12(b)(6) motion.” Sledge v. Bellwood Sch. Dist. 88, No. 12-1569, 2012 WL 5440074, at

*2 (7th Cir. Nov. 7, 2012) (internal quotation marks and citation omitted).
B. Motion to Dismiss
Defendant argues that Plaintiff's Complaint should be dismissed pursuant to Rule

12(b)(1) for lack up subject matter jurisdiction in accordance with the Rooker-Feldman



award for property maintenance fees. Id. Plaintiff did not file a timely appeal of the
foreclosure judgment in state-court.

On March 16, 2012, Plaintiff filed a six-count putative class action complaint
against Defendant in this Court for conversion, trespass to chattels, trespass to land,
violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.,
violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”),
815 Ill. Comp. Stat. 505/2, et seq., and for declaratory and injunctive relief. Defendant
now moves to dismiss Plaintiff's Complaint, arguing lack of subject matter jurisdiction
based on the Rooker-Feldman doctrine and failure to state a claim based on res judicata.
The motion is fully briefed and before the Court.

Il. DISCUSSION
A, Standard of Decision
“Subject matter jurisdiction is a threshold question, the first question in every

case, because without jurisdiction the court cannot proceed at all.” In re ALT Hotel, Inc.,

479 B.R. 781, 805 (Bankr. N.D. Ill. 2012) (internal quotation marks and citations
omitted). “In all cases, the party asserting federal jurisdiction has the burden of proof to

show that jurisdiction is proper.” Travelers Prop. Cas. v. Good, 689 F.3d 714, 722 (7th

Cir. 2012). If a party makes a facial challenge to subject matter jurisdiction, “the court
analyzes the motion to dismiss under Rule 12(b)(1) as any other motion to dismiss and
assumes for purposes of the motion that the allegations in the complaint are true.”

Sanchez v. OneWest Bank, FSB, No. 11 CV 6820, 2012 WL 2929749, at *1 (N.D. Ill.

July 18, 2012). However, “a proponent of federal jurisdiction must, if material factual

allegations are contested, prove those jurisdictional facts by a preponderance of the



“secure and winterize” Plaintiffs property in March of 2011. Id. at 3. In his Complaint,
Plaintiff alleges that this process included wrongfully changing the locks, putting lock
boxes on his doors, disabling the utilities, and clearing out the refrigerator. Compl.
{| 29-31. Plaintiff further alleges that during this entry, Defendant or its agents
“removed, damaged, and/or destroyed” items of personal property including an iPad, an
external hard drive, and a keyless entry for his automobile. Id. § 31. While Plaintiff
maintains that this entry was unlawful as the foreclosure proceeding was still pending,
Defendant contends that it acted in accordance with both the provisions of Plaintiff's
mortgage agreement, which allowed the lender to secure and repair the property if
abandoned, and a local ordinance requiring the maintenance of vacant structures. See
Def.’s Mem. in Supp. of Its Mot. to Dismiss Ex. 3, at p. 7, J 9; id. at Ex. 5.

On April 11, 2011, Plaintiff appeared pro se at a hearing in the foreclosure action
and informed the state-court that his locks had been changed by a third-party, Five
Brothers—who he now refers to as Defendant’s agents. In response, the court continued
the matter and ordered Defendant (the plaintiff in the foreclosure action) to provide
answers to the following questions at the next hearing: (1) “Who is Five Brothers?,” (2)
“What is the basis for Five Brothers entering and winterizing the subject property?,” and
(3) By what authority did Five Brothers enter and winterize?”. Id. at Ex. 4. The court
also ordered that the lock box be removed and that Plaintiff be given keys to the subject
property within 72 hours. Id.

The foreclosure suit proceeded and, on July 19, 2011, an attorney filed an
appearance on behalf of Plaintiff. On September 7, 2011, Defendant obtained a judgment

for foreclosure and sale against Plaintiff. Id. at Ex. 1. The judgment included a $470.00