United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 26, 2015*

Decided July 13, 2015

Before

DIANE P. WOOD, Chief Judge

JOEL M. FLAUM, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 14‐3707

WENDY B. ADELSON,

Plaintiff‐Appellant,

v.

OCWEN FINANCIAL

CORPORATION, et al.,

Defendants‐Appellees.

Appeal from the United States   

District Court for the Northern District

of Illinois, Eastern Division.

No. 07 C 7208

Charles R. Norgle,

Judge.

O R D E R

Eight years ago Wendy Adelson, a Michigan homeowner, sued Ocwen Loan

Servicing, LLC, and other companies involved with her home mortgage in a Michigan

court; her complaint raised only state‐law claims. She soon found herself litigating in

Chicago, however, after the defendants (for simplicity we disregard all but Ocwen and

HSBC Bank USA) removed the suit to federal court in Michigan and then engineered its

                                                 

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. The appeal is therefore submitted on the briefs and record. See FED. R.

APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 14‐3707    Page 2

transfer to the Northern District of Illinois, the site of multidistrict litigation involving a

host of claims against Ocwen. Since then Adelson’s suit, which principally alleges that

Ocwen’s irregular handling of her loan resulted in an unlawful foreclosure action, has

been dormant. The reason for the lack of action appears to be because the presiding

judge believes that Adelson’s suit was extinguished by another of the MDL cases, a

successful class action in which she was a class member. This was incorrect, as we

explain below. Adelson, trying to get her suit back on track, filed what she labeled a

motion under Federal Rule of Civil Procedure 60(b). The district judge denied her

motion, prompting this appeal. But there is no final judgment in her individual lawsuit,

and so we dismiss the appeal.   

I

Adelson bought her home in Lake Orion, Michigan, in 2006 with financing from

Sebring Capital Partners, a now‐defunct residential‐mortgage lender. Shortly thereafter

Sebring closed its doors, but not before it assigned Adelson’s note and mortgage to

another financial institution. Adelson got wind of the assignment when Ocwen entered

the picture and told her that it would be collecting future payments. According to

Adelson, Ocwen refused to disclose the name of the institution now holding her note

and mortgage. Frustrated by the lack of transparency, Adelson ceased making

payments, and within months HSBC showed its hand by initiating foreclosure

proceedings.

Adelson hired counsel and sued Ocwen and HSBC. Her state‐court complaint

includes a number of claims, all arising under Michigan law, including breach of

contract, wrongful foreclosure, violations of consumer‐protection statutes, and

intentional infliction of emotional distress. The complaint attributes the loan arrearage

to Ocwen’s malfeasance and alleges that HSBC breached the loan and mortgage

contracts by moving to foreclose. As relief her suit seeks primarily to enjoin the

foreclosure proceeding and quiet title to her home.

Ocwen and HSBC, invoking the diversity jurisdiction, removed the suit to the

Eastern District of Michigan. After filing an answer, the defendants sought transfer to

Chicago, where three years earlier the Judicial Panel on Multidistrict Litigation had

consolidated for pretrial proceedings numerous lawsuits (the number eventually

reached 93) accusing Ocwen of violating federal or state consumer‐protection statutes.

Adelson’s suit was assigned case number 07 C 7208 in the Northern District of Illinois,

where she hired local counsel. Judge Norgle, who presided over the MDL, denied
No. 14‐3707    Page 3

Adelson’s motion to remand the suit to Michigan state court. That would be the last

entry on the docket for the next six years.

Meanwhile, in another of the MDL suits against Ocwen, the plaintiffs sought

class certification. The class complaint’s lengthy list of claims all centered on Ocwen’s

alleged practice of charging and collecting late fees even when loan payments were

timely or the collection of late fees was statutorily barred. That litigation, case number

04 C 2714, did not involve HSBC or the other defendants in Adelson’s state suit other

than Ocwen and its affiliates. Adelson was a member of the putative class.

The class action was certified and settled in late 2010. Under the terms of the

settlement, which is governed by Illinois contract law, Ocwen agreed to forgive some of

the late fees it had charged. In exchange, class members released all claims against

Ocwen “arising out of, or related to, the facts and/or claims alleged in the MDL Actions

arising out of state or federal law.” (The settlement agreement defines “MDL Actions”

to include Adelson’s lawsuit.) The release expressly excepts “statutory or common law

rights against foreclosure, whether asserted in the form of a claim or defense.” Adelson

did not opt out or otherwise object to the settlement, and so in early 2012 she received

from Ocwen a credit for late fees previously charged to her loan account. Although

Adelson’s acquiescence in the class settlement had the effect of releasing some (but not

all) of the claims in her individual lawsuit, no entry to that effect was made on the

docket in No. 07 C 7208.

Three years later Adelson filed under No. 07 C 7208 the “Rule 60(b) motion” that

precipitated this appeal. In that motion, she sought to vacate, solely as to her, the

judgment in the class action, a step that she apparently believes is necessary before she

is entitled to move forward with her individual suit against Ocwen and HSBC.

(According to counsel for Ocwen, this motion came “only after foreclosure proceedings

were restarted.”) Adelson asserted that she had not received notice of the settlement, an

omission for which she faulted her attorney. Only Ocwen responded to this motion. The

company implicitly seconded Adelson’s suspicion that her individual suit against it was

ended by the class settlement. Ocwen opposed the motion on the ground that Adelson’s

allegations did not warrant relief under Rule 60(b).

The district court denied the motion. Adelson’s assertion of excusable neglect

under Rule 60(b)(1), the court reasoned, is untimely. The court also rejected Adelson’s

contention that she had established “extraordinary circumstances” under Rule 60(b)(6).

The court then declared that the release included in the class settlement precludes
No. 14‐3707    Page 4

further litigation of “all claims that were or could have been brought against

Defendants based on the allegations in her complaint.”

II

Adelson filed a notice of appeal from this ruling, asserting that the district court

abused its discretion in denying her “Rule 60(b) motion.” Before we can evaluate the

court’s ruling, however, we must ensure that our jurisdiction is secure, an obligation we

bear even if the parties do not bring the issue to our attention. See Minn. Life Ins. Co. v.

Kagan, 724 F.3d 843, 846 (7th Cir. 2013).

As we assess our jurisdiction, we are confronted first with the question whether

to treat Adelson’s submission as a motion in the class action, or as one in her individual

lawsuit. The parties have paid little attention to that detail. They focus their contentions

instead on facts relating to the class settlement, not on the facts of Adelson’s underlying

lawsuit. At the same time, the parties have consistently acted as though Adelson’s

motion was filed in her individual suit. That motion bears the name and docket number

of the lawsuit originating in Michigan state court, and none of the defendants—in

particular those who were not part of the class action—ever hinted that the case name

or number is incorrect. Neither did the district court question the form of the motion. In

this court the appellees—who, Adelson points out, purport to be all of the defendants

she named in her state complaint—frame their jurisdictional statement as if this appeal

is from the denial of a postjudgment motion in Adelson’s individual suit.   

We see no reason not to take Adelson’s motion at face value, especially since its

form went unchallenged by the defendants and the district court. Cf. Wheeler v. Talbot,

770 F.3d 550, 552 (7th Cir. 2014). This approach makes good procedural sense: By its

own terms Rule 60(b) applies only to parties and their legal representatives. Absent

class members such as Adelson are treated, with limited exceptions inapplicable here,

as non‐parties to a class action. See Devlin v. Scardaletti, 536 U.S. 1, 9–10 (2002). In

accordance with that treatment, it has long been the general rule that some form of

participation in the litigation is necessary before an unnamed class member can seek

relief under Rule 60(b). See In re Four Seasons Sec. Litig., 525 F.3d 500, 504 (10th Cir.

1975); 6A FED. PROC., L. ED. § 12:358 (Westlaw database updated 2015); cf. Devlin, 536

U.S. at 9, 14 (holding that absent class member who objects to class settlement may

appeal only “the District Court’s decision to discard his objections”). Neither party

contends that Adelson participated in the class litigation, or that there is any other

reason to disregard Rule 60(b)’s plain terms. If Adelson wants now to exclude herself
No. 14‐3707    Page 5

from the class settlement, she would need to take different procedural steps. For

example, she might consider a motion under Rule 6(b) to extend the time to opt out.

See FED. R. CIV. P. 6(b); In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 129–30 (2d

Cir. 2011).

Unless there is a final judgment in Adelson’s individual lawsuit, it was

premature to invoke Rule 60. Although an appeal from the denial of a motion under

Rule 60(b) may be taken separately from an underlying decision, the rule allows a

district court to relieve a party only from a final decision. See Mintz v. Caterpillar Corp.,

No. 14‐1881, 2015 WL 3529396, at *5 (7th Cir. June 5, 2015). The defendants hint that

they believe that the class settlement had the effect of barring Adelson’s individual suit

in toto; Adelson (who is acting pro se) appears to share that assumption. And well she

might: the district court’s order denying Adelson’s motion conveys the same message.

But that message cannot withstand scrutiny. The defendants and the district

court did not cite any authority for their understanding that the class settlement

released all defendants from all claims in Adelson’s lawsuit. The class settlement is a

written document that we may interpret for ourselves. See Stanek v. St. Charles Cmty.

Unit Sch. Dist. #303, 783 F.3d 634, 642 (7th Cir. 2015). That document does not foreclose

entirely the claims in Adelson’s individual suit, even though it purports to resolve some

of them. As to Ocwen, Adelson appears to have abandoned a significant portion of her

claims by not timely opting out of the settlement. But the release expressly exempts

claims asserted in opposition to foreclosure, and Ocwen has never developed any

argument that all of Adelson’s claims against the company (in particular those for

wrongful foreclosure and breach of contract) fall outside this exemption. Moreover, as

we have noted, Adelson’s state complaint principally sought to stop the mortgage

foreclosure. The foreclosure action was brought by HSBC and another defendant named

in Adelson’s state complaint. Neither is a defendant in the class action. It is

inconceivable that settling the class claims against Ocwen extinguished Adelson’s suit

against other defendants not involved in the class action and not affiliated with Ocwen.

At a minimum, Adelson’s entire suit continues to pend against the remaining

defendants.

We thus lack appellate jurisdiction. The judgment in the class action does not

fully resolve Adelson’s individual suit and thus essentially functions much like an order

authorizing an amended pleading that dismisses some but not all claims, see FED. R.

CIV. P. 15(a); Taylor v. Brown, No. 12‐1710, 2014 WL 9865341, at *5 (7th Cir. June 2, 2015),

or an order dismissing some but not all parties to a suit without an accompanying
No. 14‐3707    Page 6

certification under Federal Rule of Civil Procedure 54(b), see Morton Int’l, Inc. v. A.E.

Staley Mfg. Co., 460 F.3d 470, 480 n.12 (3d Cir. 2006), or partial summary judgment, see

FED. R. CIV. P. 56(a). No matter how Adelson labeled her motion, in substance she was

trying to move her stalled lawsuit forward; she was not seeking review of a supposed

final judgment in that action. The case involving Ocwen and its codefendants that the

court transferred from Michigan to the Northern District of Illinois remains pending,

and the parties and the district court should get about the business of resolving it,

whether by commencing discovery and motion practice in Chicago, or by suggesting to

the JPML that the case be returned to the Eastern District of Michigan. See 28 U.S.C.

§ 1407(a); M.D.L. Rules 10.1(b), 10.3. The litigation is unfinished, and the district court

will have to decide how much or how little is left of Adelson’s claims against Ocwen.

APPEAL DISMISSED.