McNEILL v. FRANKE No. 98-1962.
171 F.3d 561 (1999)
Cynthia McNEILL, Formerly known as Cynthia J. Franke, Appellant, v. William E. FRANKE, doing business as Gannon Partnership 19, L.P.; Gannon Partnership 19, L.P.; Kevin W. Kelly; Pentad Properties, Inc., formerly known as Kemmons Wilson Properties, Inc., formerly known as St. Louis Associates Limited Partnership, formerly known as St. Louis Associates, Ltd., Inc.; St. Louis Associates Limited Partnership, formerly known as St. Louis Associates, Ltd.; Phillip J. Paster; Department of Housing and Urban Development, Henry Cisneros, Secretary; West Pointe Limited Partnership; Northwest Village Limited Partnership; Grandview Hills Limited Partnership; Park Ridge Apartments Limited Partnership; Lamplite Limited Partnership, Appellees.
United States Court of Appeals, Eighth Circuit.
Decided March 8, 1999.
Charles F. Dufour, St. Louis, MO, argued (Thomas G. Berndsen, on the brief), for Appellant.
Thomas Cummings, St. Louis, MO, argued (Jeffrey T. McPherson, Steven M. Wald, Edward L. Dowd and Wesley D. Wedemeyer, on the brief), for Appellees.
Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.
FAGG, Circuit Judge.
This case stems from a Missouri divorce judgment awarding Cynthia McNeill a 20% interest in a private promissory note secured by a mortgage lien against five residential apartment complexes. McNeill recorded her interest, and her former husband, William E. Franke, retained the remaining 80%. Contrary to the divorce judgment's terms, Franke later unilaterally refinanced the note with a loan made under the National Housing Act and co-insured by the Federal Housing Administration, a branch of the United States Department of Housing and Urban Development (HUD). When Franke's partnerships defaulted on the
In her first amended complaint, McNeill alleged the district court had "jurisdiction of and over the subject matter and the parties . . . [under] 28 U.S.C. § 2410 in that this is an action to foreclose a lien against real property on which the United States of America claims a lien." Section 2410 provides that "the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter — (1) to quiet title to, (2) to foreclose a mortgage or other lien upon, . . . real or personal property on which the United States has or claims a mortgage or other lien." The statute does not grant jurisdiction, however, but merely waives sovereign immunity. See North Dakota v. Fredericks,
According to § 1331, federal district courts have original jurisdiction over cases "arising under the . . . laws . . . of the United States," including the federal common law, see Illinois v. City of Milwaukee,
Contrary to McNeill's assertion, Kimbell Foods does not control the decision in this appeal. Kimbell Foods dealt with choice of law, not federal question jurisdiction. Federal question jurisdiction exists only when the plaintiff's "well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust,
In the case before us, federal common law does not create McNeill's causes of action. McNeill's first amended complaint sets forth three counts. The quiet title count seeks a declaration that McNeill's lien against the property is valid and perfected and has first priority over the defendants' liens. The second count asserts St. Louis Associates breached the promissory note by failing to pay as the note required. The third count reasserts McNeill's superior interest in the property and seeks judicial foreclosure. McNeill's complaint does not specify any statutory entitlement for the relief it seeks, but it appears the complaint states claims under Missouri statutes. See Mo.Rev.Stat. § 527.150 (1994) (quiet title); id. § 443.190 (judicial foreclosure). McNeill's breach of contract claim against a private entity also arises under state law. See Federal Nat'l Mortgage Ass'n v. Howlett,
Without a federal cause of action, McNeill's case cannot arise under federal law unless her right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties. See Franchise Tax, 463 U.S. at 13, 103 S.Ct. 2841. No disputed question of federal law is a necessary element of McNeill's state claims. See id. To prevail on her claims involving HUD, McNeill must show that, under state law, she has an interest in the mortgage lien and her lien is perfected. Then, the court must decide the priority of the liens held by McNeill and HUD. Although Kimbell Foods dictates that the priority issue is governed by federal common law, there is no federal rule of priority so state law controls. See Chicago Title Ins. Co. v. Sherred Village Assocs.,
In conclusion, state law controls the outcome of this garden-variety quiet title, breach of contract, and judicial foreclosure action. McNeill will win or lose on the playing field of state law. Her case does not belong in the federal arena. We thus affirm the district court's dismissal for lack of federal subject matter jurisdiction. We grant HUD's motion to strike those parts of McNeill's appendix that were not before the district court. See Fed.R.App.P. 10(a); Barry v. Barry,
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