Unpublished Dispositionnotice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.george Phillips, Sr., Plaintiff-appellant, v. Fleet Mortgage Corporation, Defendant-appellee, 931 F.2d 895 (7th Cir. 1991)
Annotate this CaseBefore BAUER, Chief Judge, and EASTERBROOK, and RIPPLE, Circuit Judges.
Order
George Phillips, Sr., filed this diversity suit through his guardian Victoria Phillips. The pleadings and other papers are almost incomprehensible, but so far as we can determine Mr. Phillips seeks damages because the company that holds his mortgage raised the monthly payments, although the mortgage is a fixed rate. He seeks punitive damages, and the claim to such a remedy has enough basis in Wisconsin law that we cannot dismiss for failure to satisfy the jurisdictional amount.
Appellate jurisdiction is the initial question. The judgment was entered on March 23, 1990. On March 29 Phillips filed a "Petition for Enjoinder of Injunction". It is hard to see what this document is getting at, but we think it best to treat it as a motion under Fed. R. Civ. P. 59 (on the ground that it sought some modification of the substance of the adverse order), which tolls the time for appeal. The notice of appeal was filed within 30 days of the order denying this petition.
The district court granted summary judgment because the higher monthly payments represented an increase in the cost of insurance on the premises. The mortgage note sets a fixed rate of interest but provides that the amount for taxes, insurance, and other items may vary. There is no basis for the plaintiff's claim that Fleet Mortgage broke its agreement. Although Fleet Mortgage was tardy in responding to Mr. Phillips' motion for summary judgment, a district judge is not compelled to enter a default judgment for such an occurrence. The district judge's decision to give Fleet more time is not an abuse of discretion. Plaintiff's other contentions on appeal stem from his misunderstanding of the district court's orders. Contrary to his belief, there are no damages to quantify. This case is over, and he has lost.
AFFIRMED.
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a), Circuit Rule 34(f). Phillips did not file such a statement, and Fleet Mortgage filed a statement expressing the view that argument is unnecessary, so the appeal is submitted for decision on the briefs and record
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