Federal Home Loan Mortgage Corporation v. Pihakis et al

Filing 8

MEMORANDUM OPINION AND ORDER that the defendants' 6 MOTION to Remand to State Court is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/25/2013. (AHI)

FILED
2013 Jul-25 PM 02:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FEDERAL HOME LOAN
MORTGAGE CORPORATION,
Plaintiff,
vs.
THEODORE PIHAKIS, et al.,
Defendants.

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Civil Action No. CV-13-S-1094-S

MEMORANDUM OPINION AND ORDER
This action arises from the foreclosure sale of real properly that was formerly
owned by defendants, Theodore and Cathy Pihakis, to plaintiff, the Federal Home
Loan Mortgage Corporation (“Freddie Mac”).1 Plaintiff commenced an ejectment
action in the Circuit Court of Shelby County, Alabama, on January 11, 2013, alleging
that defendants refused to vacate the property.2 Defendants filed an answer and
counterclaim, asserting ten counterclaims against plaintiff, Freddie Mac, for: (i)
declaratory relief; (ii) violation of the Consumer Collections Act; (iii) breach of
contractual obligations of good faith and fair dealing; (iv) negligence/wantonness; (v)
wrongful foreclosure; (vi) abuse of process; (vii) slander of title; (viii) placement in

1

See doc. no. 1-1, at 2-3 (Complaint). Document number 1-1 contains a number of exhibits
to plaintiff’s motion for remand, including plaintiff’s complaint, defendants’ answer and
counterclaim, defendants’ motion to dismiss.
2

Id. at 3 (Complaint) ¶ 6.

a false light; (ix) breach of contract; and (x) defamation, libel, and slander.3
The parties filed two motions in state court. Defendants filed a motion to
dismiss on February 14, 2013.4 Plaintiff filed a motion for summary judgment on
March 7, 2013.5 The state court scheduled both motions for hearing on April 8, 2013,
but three days before the hearings the motions were continued generally at the request
of defendants.6 On April 18, 2013, defendants filed an answer and counterclaim
against plaintiff Freddie Mac and counterclaim-defendant Wells Fargo Bank, National
Association (the holder of the mortgage on the foreclosed real property).7 In response,
plaintiff and counterclaim-defendant Freddie Mac removed this action to federal
court.8 The action is before the court on defendants’ motion for remand to state court.9
Upon consideration, the motion will be denied.
District courts are “‘empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’ and which
have been entrusted to them by a jurisdictional grant authorized by Congress.”
3

See id. at 32-46 (Answer and Counterclaim).

4

See id. at 10 (Motion to Dismiss). At the time when defendants filed their motion to
dismiss, they were proceeding pro se. See id. One month later, they obtained presentation. See id.
at 22 (Notice of Appearance dated March 29, 2013).
5

Id. at 12-13 (Motion for Summary Judgment).

6

Doc. no. 1-1, at 11, 23, 31 (Orders).

7

Id. at 32-46 (Answer and Counterclaim). It appears that defendants have not yet effected
service on Wells Fargo.
8

See doc. no. 1 (Notice of Removal

9

See doc. no. 6 (Motion for Remand).
2

University of South Alabama v. The American Tobacco Co., 168 F.3d 405, 409 (11th
Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)).
“[U]ncertainties [regarding federal jurisdiction] are resolved in favor of remand.”
Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir. Ala. 1994) (alterations
supplied) (citing Boyer v. Snap-on Tools Corporation, 913 F.2d 108 (3rd Cir. 1990),
cert. denied, 498 U.S. 1085 (1991); Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir.
1983)).
The general removal statute states that:
“Except as otherwise expressly provided by Act of Congress, any
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, to the district court of the United States for
the district and division embracing the place where such action is
pending.”
28 U.S.C. § 1441(a) (emphasis supplied). “A counter[claim]-defendant is not a
‘defendant’ within the meaning of the general removal statute.” Federal Deposit
Insurance Corporation v. S & I 85-1, 22 F.3d 1070, 1072 (11th Cir. Fla. 1994)
(alteration supplied) (citing Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100,
108-09 (1941)). Therefore, if plaintiff and counterclaim-defendant Freddie Mac’s
removal rights were governed by the general removal statute, this court would grant
the motion for remand, because Freddie Mac is not a “defendant” within the meaning
of the general removal statute.
3

Even so, § 1441(a) states that it applies only “[e]xcept as otherwise expressly
provided by Act of Congress.” 28 U.S.C. § 1441(a) (alteration supplied). In other
words, Congress may carve exceptions out of the general removal statute. And, in this
instance, Congress has created such an exception by enacting 12 U.S.C. § 1452(f),
which is entitled “[a]ctions by and against the Corporation,” meaning the Federal
Home Loan Mortgage Corporation. That statute provides:
(1)

The Corporation shall be deemed to be an agency included in
sections 1345 and 1442 of such Title 28;

(2)

all civil actions to which the Corporation is a party shall be
deemed to arise under the laws of the United States, and the
district courts of the United States shall have original jurisdiction
of all such actions, without regard to amount or value; and

(3)

any civil or other action, case or controversy in a court of a State,
or in any court other than a district court of the United States, to
which the Corporation is a party may at any time before the trial
thereof be removed by the Corporation, without the giving of any
bond or security, to the district court of the United States for the
district and division embracing the place where the same is
pending, or, if there is no such district court, to the district court
of the United States for the district in which the principal office of
[Freddie Mac] is located, by following any procedure for removal
of causes in effect at the time of such removal.

12 U.S.C. § 1452(f) (emphasis supplied).10
Thus, § 1452(f) — the specific removal statue for actions by and against
Freddie Mac — unlike § 1441(a), the general removal statute, states that the Federal
10

Section 1452(f) refers to Freddie Mac as “the Corporation.” See 12 U.S.C. § 1451
(defining “Corporation” as “the Federal Home Loan Mortgage Corporation created by this chapter”).
4

Home Loan Mortgage Corporation may remove “any civil or other action, case or
controversy . . . to which [it] is a party,” and that it may do so “at any time before the
trial thereof.” 12 U.S.C. § 1452(f) (alteration and emphasis supplied).
In sum, the plain language of § 1452(f) permits Freddie Mac to remove this
action to federal court.

See Webb v. OCWEN Loan Servicing, LLC, No.

11-00732-KD-M, 2012 WL 5906729, *2 n.1 (S.D. Ala. Nov. 26, 2012) (observing
that “Defendant Freddie Mac removed this action after Webb amended her complaint
to add it as a defendant. Freddie Mac is a government agency and the removal was
based on 28 U.S.C. § 1442(a) and 12 U.S.C. § 1452(f).”); Mac v. Brooks, No.
3:11cv313-WHA (WO), 2011 WL 2619132, *4-8 (M.D. Ala. July 1, 2011)
(concluding that Freddie Mac, as the plaintiff and counterclaim-defendant, could
remove an action to federal court under § 1452(f)); Federal Home Loan Mortgage
Corporation v. D’Antonio, No. 94-287, 1994 WL 117789, *1 & n.1 (E.D. La. Mar. 30,
1994) (concluding that Freddie Mac, as the plaintiff, could remove an action to federal
court under § 1452(f)). See also Franklin National Bank Securities Litigation v.
Andersen, 532 F.2d 842, 845 (2d Cir. 1976) (concluding that the Federal Deposit
Insurance Corporation (“FDIC”), as the realigned party plaintiff, could remove an
action to federal court under 12 U.S.C. § 1819(4), which permitted removal of “any
suit ‘to which the Corporation shall be a party’”); S & I 85-1, 22 F.3d at 1072 (11th

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Cir. 1994) (concluding that the FDIC, as the plaintiff and counterclaim-defendant,
could remove an action to federal court under 12 U.S.C. § 1819(b)(2)(B), which stated
that “the Corporation may . . . remove any action, suit, or proceeding . . . [within 90
days after] the action, suit, or proceeding is filed against the Corporation or the
Corporation is substituted as a party”) (alterations supplied).
For all of the foregoing reasons, defendants’ motion to remand is DENIED.
DONE and ORDERED this 25th day of July, 2013.

______________________________
United States District Judge

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