IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION

REGIONS BANK, ) ) Plaintiff, ) ) v. ) No. 3:18-CV-3273 ) MMIL ENTERTAINMENT, LLC, ) COUNTY TREASURER OF LOGAN ) COUNTY, ILLINOIS, UNKNOWN ) OWNERS, and NON-RECORD ) CLAIMANTS, ) ) Defendants. )

OPINION SUE E. MYERSCOUGH, U.S. District Judge. This cause is before the Court on Plaintiff Regions Bank’s Motion for Summary Judgment (d/e 10) and Plaintiff’s and the County Treasurer of Logan County, Illinois’ Joint Consent to Judgment of Foreclosure (d/e 11). Because the inclusion of Unknown Owners and Non-Record Claimants destroys complete diversity, this cause is dismissed without prejudice for lack of jurisdiction. I. BACKGROUND In October 2018, Plaintiff filed a Verified Complaint for

Foreclosure (d/e 1) naming as Defendants MMIL Entertainment, LLC (MMIL), the record title holder of the properties in question, as well as other defendants who may have an interest in the property,

including the County Treasurer of Logan County, Illinois (County) and Unknown Owners and Non-Record Claimants. Plaintiff invoked federal jurisdiction under

predicated on

the assertions that the amount in controversy exceeded $75,000 and that the parties were diverse. Specifically, Plaintiff alleged that Plaintiff is an Alabama state

banking corporation with its principal place of business in Alabama. Plaintiff alleged that MMIL is an Illinois limited liability company whose members are citizens of the State of Illinois. See

Thomas v. Guardsmark, LLC,

(7th Cir. 2007) (“For diversity jurisdiction purposes, the citizenship of an LLC is the citizenship of each of its members.”). Plaintiff’s counsel also filed, at the Court’s request, an Affidavit identifying the members of

MMIL. Plaintiff’s counsel states that the MMIL Operating Agreement indicates the members of MMIL are David G. Lanterman and John L. Rooney, both of whom are residents of Illinois. However, “residence and citizenship are not synonyms

and it is the latter that matters for purposes of the diversity jurisdiction.” Meyerson v. Harrah’s E. Chicago Casino,

(7th Cir. 2002). Therefore, if the Court were not

dismissing for lack of jurisdiction due to the inclusion of Unknown Owners and Non-Record Claimants, the Court would require further information on the citizenship of MMIL.

Plaintiff filed an Affidavit of Service by Publication as to Unknown Owners and Non-Record Claimants (d/e 7) pursuant to Illinois law. See 735 ILCS 5/2-206 (providing for service by

publication); 735 ILCS 5/15-1502(c)(2) (requiring, for termination of the rights of non-record claimants, an affidavit and notice to non-record claimants); see also 735 ILCS 5/2-413 (providing for

service of unknown parties by affidavit and publication). Plaintiff thereafter served the Unknown Owners and Non-Record Claimants by publication (d/e 9). The other defendants have also been served. See d/e 4 (waiver of service executed by MMIL); d/e 5

(affidavit of service on the County). On April 19, 2019, Plaintiff filed a Motion for Summary Judgment (d/e 10). On May 10, 2019, Plaintiff and the County

filed a Joint Consent to Judgment of Foreclosure (d/e 11). MMIL has not filed an answer to the Complaint or responded to the Motion for Summary Judgment. Plaintiff has not sought a default

judgment against MMIL. On May 14, 2019, this Court directed Plaintiff to address whether the inclusion of Unknown Owners and Non-Record

Claimants destroys complete diversity. Plaintiff filed a Memorandum (d/e 13) asserting that Unknown Owners and Non- Record Claimants are nominal parties whose inclusion does not

destroy diversity. In the alternative, Plaintiff asks that the Court dismiss the Unknown Owners and Non-Record Claimants if the Court finds that they are not nominal parties.

II. ANALYSIS This Court has an obligation to raise sua sponte whether the Court has subject matter jurisdiction. See Craig v. Ontario Corp.,

(7th Cir. 2008). Courts have original

jurisdiction of civil actions if there is complete diversity between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs.

.

Diversity jurisdiction cannot be established without knowing the citizenship of every defendant. For this reason, “John Doe” defendants are generally not permitted in diversity suits. Pain Ctr.

of SE Indiana LLC v. Origin Healthcare Solutions LLC,

(7th Cir. 2018) (“Because the prerequisites for diversity jurisdiction must be proved and not presumed, John Doe

defendants are ordinarily forbidden in federal diversity suits.”). An exception exists when “John Does are nominal parties—nothing more than placeholders” in the event that discovery identifies

additional defendants the plaintiff wishes to sue.

In such cases, the court can ignore John Does for purposes of diversity jurisdiction.

Plaintiff cites John Hancock Realty Dev. Corp. v. Harte,

(N.D. Ill. 1983) in support of the assertion that the Unknown Owners and Non-Record Claimants are nominal parties who can be ignored for purposes of diversity jurisdiction. In Harte,

the district court held that the existence of any unknown owners or non-record claimants in a mortgage foreclosure action was merely speculative and that any interest such persons might have “cannot be held to be real and substantial until such individual is

known to exist and comes forward to make a claim.”

. The Harte court concluded that the unknown owners and non- record claimants were “nominal parties with no substantial

interest in the controversy.”

The Harte decision, however, is the minority view of the district courts in the Seventh Circuit that have considered the

issue. The majority of district courts in the Seventh Circuit who have addressed the issue conclude that unknown owners and non- record claimants are not nominal parties. See First Bank v.

Tamarack Woods, LLC, No. 13-cv-00058,

, at *2 (S.D. Ill. Sept. 30, 2013) (where the plaintiff sought to terminate the interests of the unknown owners and non-record claimants in

the mortgaged real estate); Home Sav. of Am. F.A. v. Am. Nat’l Bank & Trust Co. of Chicago,

(N.D. Ill. 1991) (where the plaintiff sought a binding adjudication against the unknown owners and non-record claimants in foreclosure action);

John Hancock Mut. Life Ins. Co. v. Cent. Nat’l Bank in Chicago,

(N.D. Ill. 1983). For example, in Home Savings of America, the court reasoned that Illinois law permits the joinder of unknown owners and non-

record claimants and, where such parties are joined, the court has the power to make a binding decision as to their rights. In such instances, unknown owners and non-record claimants are not

nominal parties. Home Sav. of Am.,

; see also Tamarack Woods,

, at *2. The Home Savings of America court also noted that the existence of unknown owners

and non-record claimants is not speculative, pointing in particular to the right of some claimants, such as the judgment creditor of a mortgagor, to redeem the property after a foreclosure sale. Home

Sav. of Am.,

; 735 ILCS 5/12-132 (providing a judgment creditor of a mortgagor the right to redeem the mortgaged property after the expiration of three months and within

six months after the sale); see also Gen. Elec. Credit Corp. v. Am. Nat’l Bank & Trust Co. of Chicago,

, 457 n.2 (N.D. Ill. 1983) (noting the interest of a judgment creditor of a mortgagor). Considering such claimants “nominal” ignores the

interests they may have in the mortgaged property. Home Sav. of Am.,

. Here, the Unknown Owners and Non-Record Claimants are not merely nominal parties. Plaintiff seeks a binding decision as to

the rights of Unknown Owners and Non-Record Claimants. Home Sav. Of Am.,

(“Because the court has the power to make a binding decision as to their rights, unknown

owners and nonrecord claimants must be considered more than nominal parties.”); Bancboston Mortgage Corp. v. Pieroni,

(N.D. Ill. 1991) (noting that unknown owners and

non-record claimants are more than nominal parties when they are either named as parties or the plaintiff seeks to bind them by publication). Therefore, this Court finds that the inclusion of

Unknown Owners and Non-Record Claimants, whose citizenship is unknown, destroys complete diversity. In its Memorandum, Plaintiff asks that the Court dismiss the

non-diverse defendants if the Court finds the inclusion of Unknown Owners and Non-Record Claimants destroys diversity. Plaintiff cites no authority for the Court to do so and provides no analysis.

Generally, subject matter jurisdiction is determined as of the time of the filing of the complaint. See Cook v. Winfrey,

(7th Cir. 1989). However, a district court may drop a dispensable nondiverse party at any time. See Newman-Green,

Inc. v. Alfonzo-Larrain,

(1989) (citing Federal Rule of Civil Procedure 21). As currently pleaded, the Unknown Owners and Non-Record

Claimants are not dispensable because Plaintiff has sought to terminate their interests in the property. Tamarack Woods,

, at * 2 (dismissing the case rather than dismissing

the nondiverse unknown parties because the plaintiff sought to terminate the unknown parties’ interests in the mortgaged property). Moreover, even if the Court dismisses Unknown Owners

and Non-Record Claimants, the fact remains that Plaintiff filed the affidavit required by Illinois law and proceeded to serve Unknown Owners and Non-Record Claimants by publication, which will

cause them to be bound to any judgment of foreclosure. Under Illinois law, the interest of a non-record claimant who is given notice as provided by 735 ILCS 5/15-1502 “shall be barred and terminated by any judgment of foreclosure to the same extent as if

such claimant had been a party.” 735 ILCS 5/1502(b). A mortgagee cannot avoid the requirements of diversity jurisdiction by not naming unknown owners and non-record claimants as defendants while also seeking to bind them by filing the affidavit

required by Illinois law and serving them by publication. Bancboston Mortgage Corp.,

. III. CONCLUSION

For the reasons stated, the inclusion of Unknown Owners and Non-Record Claimants destroys complete diversity in this case. Therefore, this cause is DISMISSED without prejudice for

lack of jurisdiction. This case is CLOSED. ENTERED: June 3, 2019

FOR THE COURT: s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE