Opinion
C. A. 6:22-cv-03915-DCC-KFM
03-15-2023
Nationstar Mortgage LLC, Plaintiff, v. Derrick Mahoney, Willow Grove Homeowners Association, Inc., Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE.
This case was removed to this court from the Greenville County Court of Common Pleas by defendant Derrick Mahoney, proceeding pro se (doc. 1). The docket number for the state court action was Case No. 2022-CP-23-03421 (id. at 1). This matter is before the court on a motion to remand filed by the plaintiff (doc. 15) and a motion to dismiss filed by Mr. Mahoney (doc. 22). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
LITIGATION HISTORY AND ALLEGATIONS
The court takes judicial notice that on June 29, 2018, Mr. Mahoney purchased property located at 725 Streamside Drive, Piedmont, South Carolina 29673 (“the Subject Property”). See Title to Real Estate, https://viewer.greenvillecounty.org/countyweb/login Display.action?countyname=Greenville (click Login as Guest, Accept, Search Public Records, Book - Page, Choose Book Type “DE” and enter Book 2542 and Page 456, Click Search, Click on Instrument Number 2018049135) (last visited March 14, 2023). On June 29, 2022, the plaintiff filed a foreclosure proceeding for the Subject Property in the Greenville County Court of Common Pleas. Greenville County Public Index, https://publicindex.sccourts.org/Greenville/PublicIndex/PISearch.aspx (enter 2022CP2303421) (last visited March 14, 2023) (“the Foreclosure Action”). In the Foreclosure Action, on July 22, 2022, Mr. Mahoney filed an answer, asserting verbatim:
1) Loan is disputed for Truth in Lending violation, Mr. Cooper was asked to provide a copy of the right of [rescission] they covered with me with my signature on it and it has not been done to date.
2) I request that the case be dismissed for failing Seal and Teste of Process which states: All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof.
Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited March 14, 2023). Mr. Mahoney, dissatisfied with foreclosure proceedings, filed a notice of removal in the Foreclosure Action on November 7, 2022 (doc. 1).
Along with the notice of removal, Mr. Mahoney filed a separate action seeking money damages and equitable relief with respect to the Foreclosure Action (“the Federal Action”). See Mahoney v. Nationstar Mort., LLC, et al., C/A No. 6:22-cv-03916-DCC-KFM (D.S.C.). On November 14, 2022, Mr. Mahoney filed a quit claim deed regarding the Subject Property in the Greenville County Register of Deeds. See Title to Real Estate (click Login as Guest, Accept, Search Public Records, Book - Page, Choose Book Type “DE” and enter Book 2673 and Page 2646, Click Search, Click on Instrument Number 2022085352) (last visited March 14, 2023). The deed purported to transfer ownership of the Subject Property to Valesia Mahoney. Id.
On January 27, 2023, the undersigned issued a report and recommendation recommending the Federal Action be dismissed as duplicative of the Foreclosure Action. See Mahoney v. Nationstar Mort., LLC, et al., C/A No. 6:22-cv-03916-DCC-KFM, at doc. 17.
On November 28, 2022, the plaintiff filed a motion seeking to remand the instant matter to the Greenville County Court of Common Pleas (doc. 15). To date, Mr. Mahoney has not filed a response to the plaintiff's motion, and the time for response has passed. On March 6, 2023, Mr. Mahoney filed a motion to voluntarily dismiss “all claims made in the Notice of Removal” without prejudice (doc. 22). The motions are now ripe for review.
APPLICABLE LAW AND ANALYSIS
As noted above, the plaintiff has moved to remand the Foreclosure Action to the Greenville County Court of Common Pleas (doc. 15). Further, Mr. Mahoney has not filed a response to the plaintiff's motion. Under 28 U.S.C. § 1441(a), “a civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants.” The burden of demonstrating jurisdiction - and the propriety of removal, however, rests with the removing party. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811,815 (4th Cir. 2004). Here, Mr. Mahoney alleges diversity jurisdiction in his notice of removal, alleging that he and the plaintiff are citizens of different states (doc. 1). The plaintiff asserts, however, that Mr. Mahoney's removal is improper and that the court does not have subject matter jurisdiction over the Foreclosure Action. The court addresses each argument in turn.
Of note, Mr. Mahoney has likewise failed to comply with two orders issued by this court instructing him to provide a copy of all matters served upon him in the state court action to the Clerk of Court pursuant to 28 U.S.C. § 1446(a) (docs. 10; 18).
Procedural Removal Defects
Pursuant to 28 U.S.C. § 1446, a defendant seeking to remove an action to federal district court must file a notice of removal within “30 days after receipt by or service on that defendant of the initial pleading or summons.” 28 U.S.C. § 1446(b)(2)(B). As noted by the plaintiff, Mr. Mahoney was served notice of the Foreclosure Action on July 5, 2022 (doc. 15-3). Mr. Mahoney subsequently filed an answer in the Foreclosure Action on July 22, 2022. Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited March 14, 2023). Mr. Mahoney's notice of removal, however, was not filed until months later - on November 7, 2022 (doc. 1) - well beyond the 30-day time period provided in 28 U.S.C. § 1446(b)(2)(B). “Failure to file a notice of removal within thirty (30) days of receipt of the notice of foreclosure hearing is grounds for remand.” See Jennifer Belter Formichella, PLLC v. Fisher, C/A No. 1:12-cv-00085, 2012 WL 2501110, at *2 (W.D. N.C. June 28, 2012) (internal citation and quotation marks omitted). The time limit is strictly construed in favor of state court jurisdiction. Id. As such, Mr. Mahoney's notice of removal was untimely, and this matter should be remanded.
Additionally, as argued by the plaintiff, the instant matter was not properly removed because the notice of removal does not reflect that the other defendant in this action, Willow Grove Homeowners Association, Inc. (“Willow Grove”), joined in or consented to the removal of this action. Pursuant to 28 U.S.C. § 1446(b)(2)(A), when a civil action is removed based upon diversity jurisdiction all “defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). In the Foreclosure Action, Willow Grove filed an answer on July 11,2022; thus, it is an active party in the Foreclosure Action. Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited March 14, 2023). As such, because Mr. Mahoney's notice of removal does not reflect that Willow Grove joined in the removal of the Foreclosure Action or consented to the removal, the removal is improper, and remand is appropriate. See Wells Fargo Bank, N.A. v. Hunt, C/A No. 6:13-cv-01333-MGL-KFM, 2013 WL 6383255, at *3 (D.S.C. Nov. 22, 2013) (collecting cases noting that “[r]emoval requires the consent of all defendants” (internal quotation marks and citations omitted)).
Subject Matter Jurisdiction
In addition to the foregoing procedural defects in Mr. Mahoney's notice of removal, the plaintiff also seeks remand of the Foreclosure Action because this court lacks subject matter jurisdiction to consider this action - whether based on federal question or diversity jurisdiction (doc. 15-2 at 2-4).
Federal Question Jurisdiction
The plaintiff asserts that remand of the Foreclosure Action is appropriate because federal question jurisdiction does not exist in this matter since the Foreclosure Action does not implicate federal laws (doc. 15-2 at 3). While Mr. Mahoney's notice of removal does not indicate that he relies upon federal question jurisdiction to remove this action (see doc. 1), out of an abundance of caution for the pro se litigant, the undersigned will address whether federal question jurisdiction may apply in this matter. In determining federal question jurisdiction, the complaint controls. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Here, as noted, the plaintiff initiated the Foreclosure Action by filing a complaint seeking to foreclose on the mortgage for the Subject Property. Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited March 14, 2023). As courts have noted, “[n]o question of federal law is implicated by the properly pleaded notice of foreclosure. Thus, federal [question] jurisdiction does not exist.” Rogers Townsend & Thomas, PC v. Boehm, C/A No. 1:12-cv-00163, 2012 WL 3155581, at *2 (W.D. N.C. Aug. 2, 2012); see Arnold v. Waterfield Mort. Co., 966 F.Supp. 387, 389 (D. Md. 1996), aff'd 116 F.3d 472 (4th Cir. 1997) (recognizing that federal courts do not interfere in state court foreclosure proceedings). Mr. Mahoney's answer, quoted above, mentions federal law in asserting violations of the Truth in Lending Act. Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited March 14, 2023). However, affirmative defenses based on federal law are not a basis for removal. In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006), cert. denied 549 U.S. 1260 (2007) (noting that “actions in which defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question.”). As such, federal question jurisdiction does not provide a basis for removal of the Foreclosure Action to this court.
Diversity Jurisdiction
The plaintiff also moves to remand the Foreclosure Action because the court lacks diversity jurisdiction (doc. 15-2 at 4). Diversity jurisdiction is conferred upon the court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). “With the exception of certain class actions, Section 1332 requires complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant.” Central W.Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) (footnote omitted). Citizenship for purposes of diversity jurisdiction “depends on the citizenship of the parties at the time suit is filed.” Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). An individual is a citizen of the state in which he or she is domiciled. Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008). A corporation, for jurisdiction purposes, is a citizen of the state(s) in which it has been incorporated as well as the state(s) where it has its principal place of business. Cent. W.Va. Energy Co. v. Mountain State Carbon, LLC, 535 F.3d 101, 102 (4th Cir. 2011). However, a case may not be removed based upon diversity jurisdiction “if any of the parties in interest properly joined and served as defendants [are citizens] of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). In the notice of removal filed by Mr. Mahoney, he asserts that he is a resident of South Carolina (doc. 1 at 4). As such, because the Foreclosure Action was filed in Mr. Mahoney's state of residence, he may not remove the Foreclosure Action based upon diversity jurisdiction. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005) (noting that removal based on diversity jurisdiction can only proceed if there is “complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State”).
Accordingly, because the plaintiff's notice of removal was not timely filed (among other procedural defects) and because the court lacks federal question or diversity jurisdiction over the Foreclosure Action, it is recommended that the plaintiff's motion to remand (doc. 15) be granted and the Foreclosure Action be remanded to the Greenville County Court of Common Pleas. Because the undersigned recommends that this matter be remanded to the Greenville County Court of Common Pleas based (among other things) on a lack of jurisdiction, it is recommended that Mr. Mahoney's motion to dismiss (doc. 22) be denied.
CONCLUSION AND RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS HEREBY RECOMMENDED that the plaintiff's motion to remand (doc. 15) be granted and that Mr. Mahoney's motion to dismiss (doc. 22) be denied. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).