that case, Judge Leighton considered unknown owners and nonparty claimants as "nominal" defendants, reasoning that the existence of unknown owners and nonrecord claimants was mere speculation and conjecture and that any interest an unknown owner or nonrecord claimant had in a particular property was not real until such an individual stepped forward to claim it. Harte, 568 F. Supp. at 516.
After careful review of both these cases and others relying upon them, the court concludes that unknown owners and nonrecord claimants are more than "nominal" defendants and must be considered for the purpose of diversity jurisdiction. It is clear that their addition to a complaint is more than a mere "speculation." Under Illinois law, unknown owners and nonrecord claimants are permissive parties, as opposed to necessary parties. Ill. Rev. Stat., ch. 110, para. 15-1501. Nevertheless, the court has the power to adjudicate the rights even of unknown owners and nonrecord claimants who are permissibly joined to the action.
If these unknown owners and nonrecord are not joined, the court's ruling will not be binding on them and any disposition of the mortgaged real estate will be subject to their interests. Ill. Rev. Stat., ch. 110, para. 15-1501(a). Therefore, in order to adjudicate the rights of all claimants, permissible or otherwise, the law permits, without limitation, the joinder of unknown owners and nonrecord claimants. Ill. Rev. Stat., ch. 110, para. 15-1501(b). Because the court has the power to make a binding decision as to their rights, unknown owners and nonrecord claimants must be considered to be more than nominal parties.
See Ill. Rev. Stat., ch. 110, para. 15-1501(a), (b).
Moreover, Judge Marshall notes that the existence of unknown owners and nonrecord claimants is not entirely speculative, and that some claimants, such as the judgment creditor of a mortgagor, have a right to redeem the property after a foreclosure sale. General Electric, 562 F. Supp. at 457, n. 2. This observation is especially appropriate in this case, which deals with real estate mortgaged at $ 3,100,000.00. Complaint, Exhibit A, p. 2. The existence of unknown third party claimants is more likely in this case than in the ordinary case of a simple residential foreclosure.
Plaintiff argues that the unknown owners and nonrecord claimants are merely nominal because it does not seek any remedy as to these defendants specifically. Plaintiff's Response, p. 5. This argument is disingenuous and is indeed contradicted in plaintiff's own brief. In footnote 5, plaintiff admits that it is seeking the same remedy as to all the defendants, whether known or unknown -- that remedy being a judgment of foreclosure and sale, an order appointing a receiver, and a judgment that the interest of the defendants in the property is subordinate to the interest of Home Savings. Plaintiff's Response, p. 5, n. 5. Plaintiff does not join these defendants purely as a matter of form. What plaintiff seeks is a binding adjudication that its interests are superior to any interest which the unknown owners or nonrecord claimants may have. Such an adjudication may hardly be described as nominal.
It is in this respect that the court believes that Judge Leighton's Harte opinion is flawed. In Harte, Judge Leighton held that "any interest in the property held by an unknown owner or nonrecord claimant cannot be held to be real and substantial until such individual is known to exist and comes forward to make a claim." Harte, 568 F. Supp. at 516. However, as noted by above, nonrecord claimants may enjoy substantive rights in a piece of mortgaged real estate, regardless of whether they are known or come forward. See General Electric, 562 F. Supp. at 457, n. 2. To consider these claimants as merely "nominal" wholly fails to recognize the interest these third parties may have in a mortgaged property.
Moreover, treatment of unknown owners and nonrecord claimants as "nominal" may well be violative of Fed. R. Civ. P. 19. As noted by Judge Shadur in Hancock, and extensively discussed by Judge Marshall in General Electric, rule 19 requires the joinder of parties who would be impaired in their ability to protect their interest by a disposition of a case in their absence. General Electric, 562 F. Supp. at 459. It is for this reason that Judge Marshall limited his holding in that case to a situation where the unknown owners and nonrecord claimants would not be bound by a disposition of a particular case. General Electric, 562 F. Supp. at 463.
Unlike the plaintiff in General Electric, plaintiff in this action seeks a binding determination of the rights and interest of unknown owners and nonrecord claimants. Interests such as the right of redemption are substantial and the determination that such interests are subordinate to a plaintiff's interest is anything but "nominal." Unknown owners and nonrecord claimants are real and substantial parties to a foreclosure action. Accordingly, the court holds that the citizenship of unknown owners and nonrecord claimants is relevant for a determination of diversity jurisdiction. The court notes that this holding does not mean that a state foreclosure action cannot be brought in federal court. Only where the plaintiff seeks a binding determination of the rights of unknown owners and nonrecord claimants does rule 19 require their joinder. A plaintiff who chooses to forego a determination of the interest of such parties may well invoke the diversity jurisdiction of this court. As plaintiff cannot plead the citizenship of such parties in its complaint, the complaint is dismissed for lack of subject matter jurisdiction.
This dismissal is, of course, without prejudice to the filing of this action in a state court of proper jurisdiction.
IT IS SO ORDERED.