                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 06a0825n.06
                             Filed: November 9, 2006

                                                05-3597

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


DANIEL L. BROWN,                                     )
                                                     )
      Plaintiff-Appellant,                           )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
FIRST NATIONWIDE MORTGAGE                            )    SOUTHERN DISTRICT OF OHIO
CORPORATION, SOUTHEAST EQUITY                        )
TITLE CORPORATION, and                               )
HOMECOMINGS FINANCIAL, a GMAC                        )
Company,                                             )
                                                     )
      Defendants-Appellees.                          )




      Before: DAUGHTREY and COLE, Circuit Judges, and RESTANI,* Judge.


      PER CURIAM. Plaintiff Daniel Brown appeals the district court’s grant of summary

judgment to defendants First Nationwide Mortgage Corporation, Southeast Equity Title

Agency, Inc., and Homecomings Financial Network, Inc., in an action in which Brown

alleged wrongdoing by the state court, the parties, and counsel in a mortgage foreclosure

proceeding commenced in 1991 and finalized in 1997. Following entry of the decree of

foreclosure, the parties entered a settlement agreement that included a lease-back to

Brown with an option to repurchase, which Brown executed in 2000. The plaintiff then filed


      *
          The Hon. Jane A. Restani, Chief Judge of the United States Court of International Trade.
05-3597
Brown v. First Nationwide Mortgage Corp.

suit in federal court claiming that First Nationwide had procured the state court mortgage

decree by fraud and that Southeast Equity Title and Homecomings Financial had also

engaged in fraud and were guilty of the intentional infliction of emotional distress. The

complaint also included claims in contract, tort, and equity against First Nationwide for

breach of duty of good faith, conversion, rescission, breach of the settlement agreement,

and intentional infliction of emotional distress.


       On appeal, Brown argues that the district court erred in applying the Rooker-

Feldman doctrine to bar his claims against First Nationwide and that summary judgment

was otherwise improper because the record reflects genuine issues of material fact as to

his claims. We conclude that the district court’s application of Rooker-Feldman, although

legally appropriate at the time, has turned out to have been incorrect in light of intervening

case law. Even so, we conclude that summary judgment was properly entered in favor of

the defendants and, therefore, find no basis on which to overturn the district court’s

judgment.


                    FACTUAL AND PROCEDURAL BACKGROUND


       In 1990, Brown became delinquent in making his mortgage loan payments to

Glendale Federal Bank. As a result, the bank began foreclosure proceedings on June 13,

1991, but the Court of Common Pleas in Montgomery County, Ohio, did not render its final

decree until June 30, 1997, due to extensive litigation instigated by Brown, including five

bankruptcy petitions, many federal civil complaints, and two unsuccessful appeals of the

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Brown v. First Nationwide Mortgage Corp.

foreclosure itself.   Defendant First Nationwide was the servicing agent on Brown’s

foreclosed loan and acted as Glendale Federal Bank’s agent during the foreclosure

proceedings. Pursuant to an order of the state court, the Montgomery County sheriff

issued a deed to Glendale Federal Bank.


       During the following year, Glendale Federal Bank litigated its right to evict Brown.

Ultimately, on July 31, 1999, the parties entered into an agreement to settle and release

all claims against each other, and Brown leased the property from First Nationwide, acting

as the servicing agent of owner Glendale Federal Bank, with an option to repurchase.

Brown subsequently repurchased the property on May 18, 2000, by securing a mortgage

loan from Aames Home Loan. Defendant Southeast Equity served as the closing agent

for this second mortgage loan, and defendant Homecomings Financial acted as the

servicing agent. At the closing, First Nationwide paid Brown the previously agreed-upon

settlement fee of $12,450, less setoff for one month’s unpaid rent of $600, the receipt of

which Brown acknowledged, and in exchange Brown signed another general release of

First Nationwide.


       After closing on this loan, Brown filed suit against First Nationwide and Aames

Home Loan in the Common Pleas Court of Montgomery County, Ohio, alleging the same

causes of action as he later asserted in the complaint filed in federal district court. In the

state trial court, Aames Home Loan filed a motion to stay the proceedings pending




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Brown v. First Nationwide Mortgage Corp.

arbitration, which was granted based on the court’s finding that Brown and Aames Home

Loan had a valid written agreement for arbitration.


       Subsequent to the Ohio state court’s decision, Brown instituted this action in the

district court, naming as defendants First Nationwide, Aames Home Loan, Southeast

Equity, and Homecomings Financial. Brown alleged causes of action based on supposed

wrongdoing by the state court, the parties, and counsel in the mortgage foreclosure

proceeding that was finalized in 1997; in the 1999 settlement of that matter by lease back

to Brown with an option to repurchase; and in the ultimate settlement of that matter by

Brown’s repurchase of the property in 2000. Against First Nationwide, the servicing agent

on the foreclosed mortgage loan, Brown alleged three counts of fraud, breach of the duty

of good faith, rescission of the sale of real property, conversion, breach of a settlement

agreement, and intentional infliction of emotional distress. Brown claimed that Aames

Home Loan, the mortgagee of his second mortgage loan, violated the Truth in Lending Act,

15 U.S.C. § 1640, and committed fraud and intentional infliction of emotional distress.

Against Southeast Equity and Homecomings Financial, the closing agent and the servicing

agent of Brown’s second mortgage loan, respectively, Brown alleged causes of action

based on fraud and intentional infliction of emotional distress.


       Pursuant to the recommendations of a magistrate judge, the district court dismissed

Brown’s claims against Aames Home Loan based on the state court’s finding that the

parties had a binding arbitration agreement and Brown’s claims were arbitrable, a ruling


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Brown v. First Nationwide Mortgage Corp.

that is not part of this appeal. The remaining three defendants moved for summary

judgment, and the magistrate judge filed two reports in which he recommended granting

these motions, finding that Brown provided no evidence to show the existence of a genuine

issue for trial. The magistrate judge also concluded that Brown’s claims against First

Nationwide were barred from consideration in federal court by the Rooker-Feldman

doctrine. Following a de novo review of both reports and all filings in the matter, the district

court issued an order adopting the magistrate judge’s reports in their entirety. From that

order, Brown now appeals.


                                        DISCUSSION


A. The Rooker-Feldman Doctrine


       As noted above, Brown had engaged in extensive litigation with defendant First

Nationwide in state court prior to filing his complaint in federal court. As the servicing agent

on Brown’s first mortgage loan, First Nationwide participated in the foreclosure proceedings

that were ultimately finalized in 1997. When Brown filed suit in federal court, First

Nationwide moved to dismiss for lack of subject matter jurisdiction under the Rooker-

Feldman doctrine. The district court granted First Nationwide’s motion, adopting the

magistrate judge’s finding that Brown’s claims relating to the mortgage foreclosure action

in state court were barred by Rooker-Feldman because they “necessarily imply that that

court was wrong in granting foreclosure and eventually confirming the sale.” We review



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Brown v. First Nationwide Mortgage Corp.

de novo the district court’s ruling that Rooker-Feldman precluded subject matter

jurisdiction. See McCormick v. Braverman, 451 F.3d 382, 389 (6th Cir. 2006).


       Rooker-Feldman is a combination of the abstention and res judicata doctrines,

under which the Supreme Court’s appellate jurisdiction precludes lower federal courts from

engaging in what amounts to appellate review of state court proceedings. See Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005) (citing Dist.

Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476 (1983), and Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415-16 (1923)). A claim barred under Rooker-Feldman may be

raised in federal court only by petition for writ of certiorari from a final judgment of the

highest state court to the United States Supreme Court, pursuant to 28 U.S.C. § 1257.

See Exxon Mobil Corp., 544 U.S. at 283-84. The Supreme Court recently clarified the

limited situation in which this doctrine applies to bar a claim in lower federal courts:


       The Rooker-Feldman doctrine, we hold today, is confined to cases of the
       kind from which the doctrine acquired its name: 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.


Id., 544 U.S. at 284. Although Rooker-Feldman prohibits district courts from hearing claims

that a state court judgment was unconstitutional or violated federal law, see McCormick,

451 F.3d at 395, it does not “stop a district court from exercising subject-matter jurisdiction




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Brown v. First Nationwide Mortgage Corp.

simply because a party attempts to litigate in federal court a matter previously litigated in

state court.” Exxon Mobile Corp., 544 U.S. at 293.


       Federal jurisdiction is proper if a federal plaintiff presents an independent claim,

“albeit one that denies a legal conclusion that a state court has reached in a case to which

he was a party.” Id. (quoting GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (5th Cir.

1993). In the wake of Exxon Mobile Corp., we recently adopted a Fourth Circuit rule to

differentiate between claims attacking state-court judgments, which are barred by Rooker-

Feldman, and independent claims, over which lower federal court have jurisdiction. The

focus, we held, must be on


       . . . the source of the injury that the plaintiff alleges in the federal complaint.
       If the source of the injury is the state court decision, then the Rooker-
       Feldman doctrine would prevent the district court from asserting jurisdiction.
       If there is some other source of injury, such as a third party’s actions, then
       the plaintiff asserts an independent claim.


McCormick, 451 F.3d at 393. Thus, a complaint in which the plaintiff contends he was

injured by the defendants, rather than by the state court decision itself, is not barred by

Rooker-Feldman, even if relief is predicated on denying the legal conclusion reached by

the state court.


       In this case, the plaintiff maintains that his injuries were caused not by the final

decree of foreclosure issued by the state court but, instead, by the actions of various

people involved in the mortgage foreclosure proceedings. Brown alleges wrongdoing by


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Brown v. First Nationwide Mortgage Corp.

the Court of Common Pleas of Montgomery County, Ohio, the attorneys involved in the

mortgage foreclosure action, and the parties involved in the mortgage foreclosure action,

including defendant First Nationwide.      The plaintiff asserts, for example, that First

Nationwide engaged in ex parte communications with the judge, “used deceitful tactics to

make sure that Mr. Brown was not aware of the court proceedings,” and improperly

modified a final judgment in the state court.


       In McCormick, we recently examined claims similar to Brown’s and concluded that

federal jurisdiction was proper under such circumstances. There, the plaintiff claimed that

previous state court judgments “were procured by certain Defendants through fraud,

misrepresentation, or other improper means.” 451 F.3d at 392.             The district court

dismissed the case due to lack of subject matter jurisdiction, finding that the plaintiff’s

complaint was an improper appeal of a state court order. See id. at 388. On appeal,

however, we reversed the ruling of the district court, holding that the source of the injury

alleged was not the state court judgment itself but rather the actions of the defendants and,

thus, that the plaintiff had stated independent claims to which Rooker-Feldman did not

apply. See id. at 392.


       Here, Brown’s allegations of fraud in connection with the state court proceedings,

like those in McCormick, did not constitute “complain[ts] of ‘injuries caused by the state

court judgments,’” id. at 392 (quoting Exxon Mobile Corp., 544 U.S. at 284), because they

do not claim that the source of Brown’s alleged injury is the foreclosure decree itself.


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Brown v. First Nationwide Mortgage Corp.

Instead, the claims concern the actions of defendant First Nationwide (and others) that

preceded the decree. Therefore, Brown’s claim that the mortgage foreclosure decree was

procured by fraud is not barred by Rooker-Feldman.


       Defendant First Nationwide argues that even if this claim does not assert injury from

the state court judgment, it is “inextricably intertwined” with that judgment such that it

should be barred under Rooker-Feldman. Based on the Supreme Court’s clarification of

Rooker-Feldman in Exxon Mobil Corp., the Sixth Circuit recently explained the implication

of the words “inextricably intertwined” in the context of the Rooker-Feldman doctrine: “In

short, the phrase ‘inextricably intertwined’ only describes the conclusion that a claim

asserts an injury whose source is the state court judgment, a claim that is thus barred by

Rooker-Feldman.” McCormick, 451 F.3d at 394-95. Because the source of the injury

asserted by Brown’s complaint is the defendant’s conduct, not the state court judgment,

First Nationwide’s argument with regard to jurisdiction must fail.


B. Existence of Genuine Issues of Material Fact


       Even in the absence of a valid ruling under Rooker-Feldman, however, the findings

of the magistrate judge adopted by the district court provide a sufficient basis upon which

to base summary judgment in favor of First Nationwide, as well as the other two

defendants, who assert that the dismissal of Brown’s claims by the district court was




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Brown v. First Nationwide Mortgage Corp.

proper because the plaintiff failed to demonstrate that any genuine issue of material fact

remained to be resolved in this litigation.


       We review de novo the grant of summary judgment by a district court. See Ciminillo

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is proper where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” FED . R. CIV . P. 56(c). A

genuine issue of material fact exists only when, assuming the truth of the non-moving

party’s evidence and construing all inferences from that evidence in the light most

favorable to the non-moving party, there is sufficient evidence for a trier of fact to find for

that party. See Ciminillo, 434 F.3d at 464.


       On a motion for summary judgment, the movant bears the burden of showing that

there exists no genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970). Nevertheless, in response to the movant’s properly supported motion,

the opposing party may not merely rest on its pleadings but must set forth specific facts

showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986). Although the court must read the evidence and all reasonable inferences

drawn therefrom in the light most favorable to the party opposing the motion, a “mere

scintilla” of evidence will not be enough to withstand summary judgment. See Ciminillo,

434 F.3d at 464. The opposing party must “do more than simply show that there is some


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Brown v. First Nationwide Mortgage Corp.

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986).


       In the district court, all three defendants, First Nationwide, Southeast Equity, and

Homecomings Financial, filed motions for summary judgment that were referred to the

magistrate judge for a recommendation to the district court. The magistrate judge issued

an order explaining the requirements of Federal Rule of Civil Procedure 56 regarding

motions for summary judgment, informing Brown that he could not rely merely on the

claims made in his complaint, but rather that he was required to respond, with evidence “of

the same quality as would be admissible at trial,” showing that there existed a genuine

issue of material fact with regard to each of his claims.


1. Defendant First Nationwide


       Brown argues that the district court erred in granting summary judgment in favor of

defendant First Nationwide, claiming that a genuine issue of material fact existed regarding

his allegations of fraud, breach of the duty of good faith, rescission of the sale of real

property, conversion, breach of a settlement agreement, and intentional infliction of

emotional distress. We note initially that some of these claims are extinguished by the

releases that Brown signed on July 31,1999, and May 18, 2000.


       As to the claims that post-date May 2000, we have relevant evidence supplied by

First Nationwide but no such rebuttal proof from the plaintiff. First Nationwide submitted


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Brown v. First Nationwide Mortgage Corp.

two affidavits: one, from attorney Rick DeBlassis, described the extensive litigation history

between the parties and the other, provided by Donna Case-Rossato, vice president and

associate general counsel for CitiMortgage, Inc., the successor-in-interest by merger to

First Nationwide, detailed her personal knowledge of the case, which was gained through

negotiating the settlement of litigation as well as drafting the settlement and release

agreements.     In response, Brown submitted a memorandum with three documents

attached: a copy of a check written on May 18, 2000, from Southeast Equity to Daniel Lee

Brown for $9,708.62; a letter from Homecomings Financial to Brown dated January 15,

2002, indicating that Homecomings Financial paid $3,550.01 of Brown’s property taxes on

October 11, 2002; and a sworn affidavit from Brown.


       Brown’s attachments fail to establish a genuine issue of material fact regarding First

Nationwide’s alleged fraud, breach of settlement agreement, or any other wrongdoing.

First Nationwide did not dispute either the check from Southeast Equity or the letter from

Homecomings Financial, as both were consistent with its version of the facts. Thus, these

two documents do not “do more than simply show that there is some metaphysical doubt

as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). The third attachment, Brown’s affidavit, fails to meet the standard set by

Federal Rule of Civil Procedure 56(e) for affidavits offered in support or opposition of a

motion for summary judgment. Under Rule 56(e), these affidavits “shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

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Brown v. First Nationwide Mortgage Corp.

FED . R. CIV. P. 56(e). In contrast, the majority of Brown’s affidavit consists of no more than

unsupported allegations, such as “Daniel Brown states that First Nationwide and attorneys

presented misleading facts to the court to commit fraud.” Because Brown’s affidavit does

not meet the standard established in Federal Rule of Civil Procedure 56(e), neither it nor

his other attachments provide adequate support for his memorandum in opposition to First

Nationwide’s motion for summary judgment. Therefore, the district court properly found

that there was no genuine issue of material fact regarding any of Brown’s claims against

First Nationwide, and summary judgment for First Nationwide was appropriate.


2. Defendant Southeast Equity


       Brown’s claims against Southeast Equity fare no better. Southeast Equity was

retained by Aames Home Loan to conduct the closing on Brown’s mortgage loan with

Aames Home Loan on May 18, 2000, but Southeast Equity did not negotiate the loan and

made no representations to Brown concerning the terms or nature of the loan. In the

district court, Southeast Equity moved for summary judgment, submitting an affidavit in

support from Victoria L. Littman, the Southeast Equity employee who conducted Brown’s

loan closing on May 18, 2000. In response, Brown failed to present any evidence to

support his memorandum in opposition, despite the court’s notice informing the plaintiff that

he must produce evidence to defeat a motion for summary judgment. Therefore, the

district court concluded that no genuine issue of material fact existed and granted summary

judgment to Southeast Equity.


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Brown v. First Nationwide Mortgage Corp.

       On appeal, Brown contends that summary judgment was improperly granted,

because the record contradicts the district court’s decision with regard to his claim that

Southeast Equity committed fraud by concealing documents and presenting misleading

information related to the disbursement of his settlement from First Nationwide, which was

to occur at the time of the closing. However, Brown presented no evidence to contradict

Littman’s affidavit, attached to which were various loan documents presented to Brown at

the closing. In her affidavit, Littman recited that she had explained the substance of each

document involved in the closing and had given Brown the opportunity to ask questions

regarding the contents of each document. Specifically, Littman noted that she had

reviewed the provisions regarding the interest rate of the loan, the terms of the loan, the

monthly payment requirements, and the disbursement of the proceeds. Once she had

reviewed each of the closing documents with Brown, Littman witnessed his signature, and

after the closing, Southeast Equity provided Brown with copies of the documents he had

signed.


       Among the documents presented to Brown at the closing was a Housing and Urban

Development (HUD) Settlement Statement prepared by Southeast Equity based on

information provided by Aames Home Loan. Southeast Equity was not provided any

information regarding the disbursement of the funds that differed from the terms set forth

in the HUD statement. After the closing, Southeast Equity sent a check to Brown in the

amount reflected in the HUD statement that Brown signed and initialed.



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Brown v. First Nationwide Mortgage Corp.

       Hence, the uncontradicted facts establish that at the closing, Brown was shown

each document, the documents were explained, and he was given the opportunity to ask

questions. In addition, the terms and conditions of the loan were specifically noted in the

closing documents, including the applicable distribution amounts. Brown signed the

closing documents, thereby acknowledging the terms, conditions, and amounts involved.

Given that the terms of the loan were explicitly stated in the loan documents, Brown did not

adduce evidence that Southeast Equity committed fraud under Ohio law. Moreover, Brown

supplied no evidence of the “extreme and outrageous” nature necessary to support a claim

of intentional infliction of emotional distress. See generally Yeager v. Local Union 20,

Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 453 N.E.2d 666, 671 (Ohio

1983) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). As a result, a grant

of summary judgment to Southeast Equity on both claims was appropriate.


3. Defendant Homecomings Financial


       Brown likewise argues that summary judgment was improperly granted to

Homecomings Financial, based on his contention that the company committed fraud by

adding a prepayment rider to his mortgage loan without his knowledge. Brown alleged that

his loan contract with Aames Home Loan lacked a prepayment penalty clause but that

Homecomings Financial nevertheless “required plaintiff to make payment for two years or

pay a penalty of $4,639.32.” Although Brown asserted that Homecomings Financial

changed the terms of the loan contract without his knowledge or consent, he presented no


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Brown v. First Nationwide Mortgage Corp.

evidence to rebut the affidavit of Mimi Lev, submitted by Homecomings Financial in support

of its motion for summary judgment. Lev’s affidavit established that Brown signed the

prepayment rider on the date of the loan closing, indicating that he was aware of the

existence of the rider and that he voluntarily accepted the financial obligation that it

represented. Therefore, Brown failed to establish that Homecomings Financial committed

fraud. Moreover, he submitted no evidence that Homecomings Financial’s conduct was

extreme and outrageous and therefore failed to show how Homecomings Financial

committed the tort of intentional infliction of emotional distress. Accordingly, Homecomings

Financial was entitled to summary judgment on this basis as well.


                                        CONCLUSION


       For the reasons set out above, we conclude that the district court properly granted

the defendants’ motions for summary judgment. Although a subsequent change in the law

made the district court’s application of the Rooker-Feldman doctrine to the plaintiff’s claims

against First Nationwide inappropriate, summary judgment was nonetheless proper

because the plaintiff failed to establish a genuine issue of material fact for trial. In addition,

the district court properly granted Southeast Equity’s and Homecomings Financial’s

motions for summary judgment because Brown did not produce sufficient evidence to

establish a genuine issue of material fact concerning his claims against those parties. We

therefore AFFIRM the judgment of the district court.




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